8 13 13 996 Pages Bates Stamped Ex 2 Ocr For 60838 62337 ROA From RMC in 22176 To 2JDC For CR12 - 2064 and Everything Filed in Appeal Through 3 27 12

Code 1180
OR\G\NAL
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ot
I
IN THE SECOND JUDICIAL DISTRICT COURT OF THE STATE NEVADA

I
7 I
IN AND FOR THE COUNTY OF WASHOE
8
9
ZACHARY BARKER COUGHLIN, i
10
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11 Appellant, Case No. t.--
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vs. II i
12 Dept. No.---'\_O _ _
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11 I
13 CITY OF RENO, iI
Respondent.
14
--------_-- ,1,
15
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16
APPEAL PROCEEDINGS FROM MUNICIPAL'S COURT
17
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Document Code 1375
Reno Municipal Court
P,O, Box 1900
ORIGINAL
Reno,Nevada 89505
3 775 334-2290
4
IN THE SECOND JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA
5 IN AND FOR THE COUNTY OF WASHOE
6 ZACHARY BARKER COUGHLIN,
7 APPEALLANT,
8 v, RMC Case No.IICR22176
9 CITY OF RENO, Dept. No.4
10 RESPONDENT.
11 ____________________________ I
CERTIFIED COPY OF DOCKET

12
September 14,2011: Criminal Complaint filed charging Defendant with Petit
13
Larceny,
14
September 14,2011: Arrest Report and Declaration of Probable Cause
15
October 10,2011: Notice of Setting Bench Trial date of November 14, 2011.
16
October 18,2011: Notice of Availability of Discovery and Request for Reciprocal

17
Discovery,
18
October 26,2011: Application and Affidavit for Appointment of Legal Defender.
19
October 26,2011: Motion to Continue November 14, 2011, trial date.
20
October 27,2011: Order Denying Appointment of Legal Defender.

21
October27,2011: Order Denying Motion to Continue November 14, 2011, trial date.
22
November 3,2011: Motion for Reconsideration, Motion to Vacate or Set Aside
23
(under Rule 59 and or 60) Order Denying Right to Counsel and Motion to Dismiss,
24
November 15,2011: Notice of Setting Bench Trial date of November 30, 2011.
25
November 29,2011: Subpoena Duces Tecum filed by Defendant Coughlin,
26
November 30,2011: Notice of Appearance, Motion for Continuance, Etc,
RENO 27
MUNICIPALCOUR1
November 30,2011: Trial was held in this matter. Present on behalf of the City was
P.O Box 19110
Reo", NV 895115
(17 ) J.l4-2J fI
28
--=[ 1 ]=--
002
• •
1
Pam Roberts and Defendant appeared pro per. The Court found the defendant guilty of Petit
2
Larceny, a violation of RMC 08.10.040. The Defendant was sentenced as follows:
3
Three Hundred and Sixty ($360.00) fine.
4
November 30,2011: Judgment of Conviction and Court Order
5
November 30,2011: Order For Summary Punishment of Contempt Committed in the
6
Immediate View and Presence of the Court.
7
December 13,2011: Notice of Appeal, Motion to Vacate and or Set Aside, JCRCP
8
59, JCRCP 60, Motion for Reconsideration; Motion for Recusal.
9
December 13,2011: Record Request by Defendant Coughlin.
10
December 13,2011: Record Request by Defendant Coughlin.
11
December 14,2011: Financial Inquiry Application and Motion to Proceed Informa
12
Pauperis.
13
December 15, 2011: Order denying Defendant's Motion to Proceed In Forma
14
Pauperis,Motion for Publication of Transcript at Public Expense, Motion to Vacate andlor Set
15
Aside, Motion for Reconsideration and Motion for Recusal.
16
December 15,2011: Notice of Denial of Service filed by Reno City Attorney.
17
December 16,2011: Defendant Coughlin's Supplemental to Notice of Appeal,
18
Motion to Vacate and or Set Aside, JCRCP 59, JCRCP 60, Motion for Reconsideration;
19
Motion for Recusal; Motion to Strike.
20
December 16,2011: Defendant Coughlin's Notice of Denial of Service; Opposition
21
City of Reno's Notice of Denial of Service; Request for Clarification Regarding Deadline for
22
Filing Motion for new Trial, Other tolling Motions, etc., Application for Deferral or Waiver of
23
court Fees and Cost.
24
December 16,2011: Court Order ordering Defendant Coughlin from communicating
25
via e-mail with Judge Howard and court staff.
26
December 16,2011: Defendant Coughlin'S Notice of Denial of Service; Opposition
R!;:i'oO
MUNICIPAL COUilT
27
PO Boxl90U City of Reno's Notice of Denial of Service; Request for Clarification Regarding Deadline for
R,'nn, NV IIYSlIS
(71 ) J3 -21 1)
28
--=[ 2 ]=--
003
• (
Filing Motion For New Trial, Other Tolling Motions, etc; APPLICATION FOR DEFERRAL
2
OR WAIVER OF COURT FEES AND COSTS.

3
December 16, 2011: Defendant Coughlin's Supplemental To Notice of Appeal,

4
Motion to Vacate and or Set Aside, JCRCP 59, JCRCP 60, Motion for Reconsideration;
5
Motion for Recusal; Motion to Strike.
6
December 19,2011: Defendant Coughlin's Notice of Denial of Service; Opposition

7
City of Reno's Notice of Denial of Service; Request for Clarification Regarding Deadline for
8
Filing Motion For New Trial, Other Tolling Motions, etc; APPLICATION FOR DEFERRAL
9
OR WAIVER OF COURT FEES AND COST.

10
December21,2011: Reno City Attorney's Opposition to Motion for New Trial.
11
d
Dated this 22n day of December, 20 II.
12
13
Kenneth R. Howard, Judge
14
15
16
17
18
19
20
21
22
23
24
25
26
RENO
MUNICLPAL COURT
27
PO Bu, I III)
Rem" NV 895(1
(77 ) 3J-4-!290
28
--=[ 3 ]=--
004
• •
1 CERTIFICATE OF TRANSMITTAL OF COMPLETE RECORD ON APPEAL
2 I, CASSANDRA JACKSON, Interim Court Administrator of the Reno Municipal
3 Court, do hereby certity that the attached documents include full, true and correct copies of all
4 papers relating to Case Number llCR22176, including a Certified Copy of Docket. Further,
5 said documents have been transmitted to and filed with the clerk of the Washoe County
6 District Court. d
Jl
7 Dated this,;i.d day of December, 2011.
10 SUBSCRIBED AND SWORN BEFORE ME
11
This Je d day of Dece er, 2011.
.r
I
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
""0
MUNICIl'AL COURT
27
p 0. EIo 19110
Ren , 1\V 8951
(775) 31-1-12'111
28
--=[ 4 ]=--
005
• •
1 CERTIFICATE OF SERVICE
Pursuant to NRCP 5(b), I certify that I am an employee of the Reno Municipal Court,
Reno, Nevada, and that on this date I served a true and correct copy of the foregoing
4
document, CERTIFIED COPY OF DOCKET on the party(ies) set forth below:
5
./' Placing said document in a sealed envelope placed for collecting and mailing
6
in the United States mail, at Reno, Nevada, postage prepaid, following ordinary
7 business practices.
8
Facsimile (FAX).
9
Reno/Carson Messenger Service.
Federal Express or other overnight delivery.
10
..,/ Inner-office mail following ordinary business practices.
11
Personal Delivery.
12
13
City Attorney's Office Mr. Zachary Barker Coughlin
P.O. Box 1900 817 N. Virginia Street, #2
14
Reno, Nevada 89509 Reno, Nevada 89501
15
Dated this day of December, 2011.
-LkM2
16
17
18
19
20
21
22
23
24
25
26
''',"0
MUNICIPAL COURT
27
P.O. 80. 19110
Rrno, NVII\I
(7J ) JJ.j...22!Jl1
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1 Case No. 09CR362 I 9 r: I
2 Dept. 4
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5 COUNTYOFWASHOE,STATE OFNEVADA De, II

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7 ZACHARYBARKER COUGHLIN,
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8 Appellant,
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APPEAL BOND RDER
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9 vs.
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10 CITY OF RENO, I,
11 Respondent.
-------_ /
12
, ,"
13 Pursuant to NRS 177.105, \ 77.115,178.488, and 178.498, this Court orders at Bail or Bond
14 on Appeal is: ,i
i
(X) GRANTED
II I
15 and set in the amount of $ 360.00 , with the condition that e Defendant:
i '
16 ( ) comply with the No Contact Order
17 ( ) comply with all Counseling requirements
18 ( ) comply with the Parenting Class requirement
19 ( ) other: _________________ +_
20 ( ) DENIED for the following reason(s):
21 ( ) violent nature/seriousness of the instant offense

,
I,
22 ( ) prior criminal history I,
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23
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) prior failures to appear andlor comply with Court orders , I
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24 ( ) lack of connection to the community i
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25 ( ) lack of jurisdiction on appeal
26 ( ) other : ---+_ ,!J

.--
:l.2@daYOf �"'1� , 2011

______ ________ _
RENO
M\OOCIPALCO\\1\'f
P. O. BoJ. 1900
27 DATED this I
_NY"",
(71S)J34..t2fO
28
KENNETHR.
Department Four
I 007
, ,
,
008
009
IN THECOUNTY
Ai�IPAL COURT OF THE CIT�j RENO
OF WASHOE, STATE OF NEVADA
ONE SOUTH SIERRA STREET, RENO, NV 89505
Mailhlg: P.O. Box 1900, Reno, NV 89505 PHONE (775)334-2290 FAX (775)334-3824
CITY OF RENO, PLAINTIFF

VS.
DEFENDANT: COUGHLIN, ZACHARY BARKER

Court Case#: 11 CR 22176 21 DOB: __ Status: OPEN
Agency#: RSICPIICII0627 Accident#: B ooking# : 15953 Language: ENGLISH
Jail Days: 0
Offense Dt: 09/09120II Suspended Days: 0
Arrest Dt: 09/0912011
Plea: 1011012011 - NOT GUILTY
Additional Fees 40.00 40.00 o
SupervisIon Fee Subtotal: Supv Fee(s) Due:

$40.00 $40.00 $0
DEFENDANT:-COUGHLlN, ZACHARY BA'

'R
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K'''E'R
'' c--� AgencylFfCII0617'-- '-------'-COURT CASE #: II CR 22176 21
Defendant Initials: Print Date: 10110/2011 Data Date: 10/1012011 Page I of2
010
Balance: _}
• .1 Completed I'!!""
FAILURE TO COMPLY WITH THE CONDITIONS OF BAIL AS DESCRIBED IN THIS ORDER WILL RESULT IN THE ISSUANCE OF A
FAILURE TO COMPLY WARRANT OR IMMEDIATE ARREST AND INCARCERATION FOR CONTEMPT OF COURT ANDIOR BAIL
REVOCATION. FOR FURTHER INFORMATION, CONTACT THE SENTENCE COMPLIANCE WINDOW LOCATED ON THE FIRST
FLOOR OF THE RENO MUNICIPAL COURT, ONE SOUTH SIERRA ST, RENO, 334-2290. NV (775)
THE DEFENDANT SHALL APPEAR AS ORDERED FOR
BAILIFFSIMARSHALS AND ALL COURT STAFF 4
t
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ALL
REVIEWS AND SHALL COOPERATE FULLY WITH THE
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THE DEFENDANT SHALL ATTEND ALL REVIEWS, COURil" AP � EA RANCES AND COu ItT-ORDE RljD PROGRAM 0J0! Til p AN EJi "
..______
-Al,COHOL AND DRUG FRE !j;) 0'\0+

:J� N IJ./Y\""J.; P\"'r\!.. iM.f'hy,-S \1(.. \ "=''f$c}-I ".-\..0 \.4;./, ".
\:: c;:..... �\�""v.".","
IV\-.> '("{<� "....vv!"h\ I\{tJl.. Y �(I\j\� v\.'l.v�.
THE DEFENDANT SHALL KNOW HISIHER COURT DATE AND MAINTAIN CONTACT WITH HISIHER ATTORNEY.
PRIOR TO CHANGING HISIHER ADDRESS OR PHONE NUMBER, THE DEFENDANT SHALL NOTIFlY THE COURT OF SUCH
CHANGE.
OBEY ALL LAWS,
/J)
.Jf/%/
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THE HONORABLE WILLIAM GARDNER // "'.if'. A

�J�U�D�G�E�'� S �SI�G�N�A�T�U� R�E�==
: ============��
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� �� -J��======�D�A�T�E�:======== ==========�
� ___ _
Vou are ordered by the Court to arrive drug/alcohol free and on time for all Court hearings and Court related progams. Failure to
appear in Court will result in the issuance of a warrant for your arrest. Any violation of this instant order may result in contempt
proceedings and the filing of additional criminal charges. In accordance with NRS 22,010, it is a misdemeanor for any person to fail,
r Ju<!ge, �ill remain in effect until the
Court issues another order superseding it.
I UNDERSTAND AND PROMISE TO OBEY THIS ORDER. DEFENDANT,:'

�
I
refuse or neglect to comply with the terms of any order issued by the Municipal Cou
/
,/.If::.C::...-':.:::.
This or
J
11
TIME:
__ _ _ _____
DATE:,
_____
.
___
/; THE
_ __ ____ _____
_
I, THE SWORN INTPRETER HAVE FULLY INTERPRETED THIS ORDEVTo

DEFENDANT: DATE:, TIME: ____
_
_
__
_
RECEIVED BY DEPUTY: -E'____----------DATE:, ---- TIME:
�
_
___ _
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_ _ _
ISSUED BY MARSHAL: DATE:! l) I J.() J 1/ TIME:

DEFENDANT: COUGHLIN, ZACHARY BARKEt< Agency#: ICII0627 COURT CASE #: 11 CR 22176 21
Defendant [nitials: Print Date: 10/1012011 Data Date: 10110/2011 Page 2 of 2
011
••
FILE
RENO HUN/C D
CASE NO. ICII0627 IOA! COUR T
201/ OCT /8
2
DEPT. NO.4 AM /0: 5-
3 IN THE MUNICIPAL COURT OF THE CITY OF RENO� -, !.
BY ..¢At-
OEifUTY
5
6 CITY OF RENO,
7 Plaintiff, NOTICE OF AVAILABILITY OF

DISCOVERY AND REQUEST FOR
8
vs. RECIPROCAL DISCOVERY
9
Zachary Coughlin,
10
Trial Date: 11/14/2011
11 Defendant.
r----------------- I
12 I
_______
13 Please call the Criminal Division at 334-2050 to arrange for preparation of discovery in
14 this case. After your call requesting preparation of discovery, it will be available for pickup at
15 the Reno City Attorney's Office, Monday - Thursday 10:00 a.m. to 3:00 p.m. All potential
16 witnesses for the City's case in chief are named in the discovery (which includes a copy of the
17 police report), and pursuant to NRS 174.234-235 no other "witness list" need be or will be
18
provided.
19
The City hereby requests that the Defendant provide discovery and notice of defense
20
witnesses pursuant to NRS 174.234 and 174.235.
21
DATED this l?>fI1 day of October, 2011.
22
23
24 Deputy City Attorney
25 A copy of this Notice has been sent to Zachary Coughlin at 121 River Rock Street, Reno,
26 Nevada 89501 on October �011.

27
28
Rcno City Attorncy

P.O. Box 1900
Reno, NY 89505
-1-
012
\ \-I \ 'I
RENO MUNICIPAL COURT

APPLICATION AND AFFIDAVIT FOR APPOINTMENT OF LEGAL DEFENDER
FILED
RENO MW/fCIP/;I COURTCORTE MUNICIPAL DE RENO
SOUCITUD Y DECLARACION JURADA PARA ASIGNACION DE DEFENSOR LEGAL
2011 OCT 26 AM II: 38
k 7J.U
�� -- ��--��JJN
I declare that I am an indigent person without financial means to employ an attorney and that all 01 the facts, figures, answers and
statements contained in this application are true and correct.
Yo declaro ser una persona indigente y carezeo de recursos econ6mieos pera contratar los servieios de un abcgado y dec/aro que
�
; a
¥'lj/17 N)-"2.
informacion, cifras, respuestas y declaraciones contenidas en esta solicitud son verdaderas y co"ect s. }
0o. �
. <:
_
.
1. Do you receive any form of public assistance such as food stamps or public housing? � ;/ Yes [1 No [ 1
Recibe ustad alguna forma de ayuda financiera del gobiemo tal como cupones pera comida, 0 �? Si [J
vivienda ptib/ No [J
)
"m/l /7 I '=:1 '
J 1 __
If yes, please specify

;
'.
Si la respuesta es afirmativa, especifique '

.
I '
V
What proof of this assistance do you have?
Que prueba puade usted presentar de esla ayuda?
2. Are you currently serving a sentence in a jail or prison? Vest 1 No f.{

Actualmente esta usted cump/iendo una sentencia en una carcel 0 prision? Sir ] No[ ]
If yes, list charges, case numbers and time to serve.

Si la respuesta es afirmativa, indique los cargos, el ntimero del caso y cuanto tiempo Ie queda por cumplir.
3. How many people are in your household (live with you)?
Ii Z
Cuantas personas viven en su residencia (viven con usted)?
4. What is the total weekly fami� income for everyone living in your household?
$ ,,\1_'(1.: c?()
Cuant6 es el ingreso lotal semanal familiar de lodos los que viven en su residencia? $ _-
What is the total monthly family income for everyone living in your household? $,---
Cuanlo es el ingreso tolal mensual familiar de todos los que viven en su residencia? $,
----
5, Are there other reasons why you feel you would suffer substantial hardship if you were required to seek and retain private counsel?
If so, what are they?
!
Hay olras razones que usted cree que Ie pondr(an en dificultades econOmicas si se I� obligaria a contratar un abogado privado? Si
la respuesta es afirmaliva, cuales son? i '
: •
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013
014
1 Case No.llCR22176
Dept. 4
2
3
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4 elil.J
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ark
5 .
IN THE MUNICIPAL COURT OF THE CITY OF RENO
6
COUNTY OF WASHOE, STATE OF NEVADA
7
CITY OF RENO,
8
Plaintiff,
9
vs. ORDER DENYING LEGAL DEFENDER
10
Zachary Barker Coughlin, COURT DATE: November 14,2011 @ 1:00 p.m.
11 Department Four - Courtroom B
12 Defendant.
----,--
l3
14 An Application for appointment of a Legal Defender having been filed with this Court,
15 and having been reviewed by this Court, therefore;
16 This Court does hereby DENY said appointment for the reason that if convicted of this
17 charge, the standard sentence carries no jail time.
18 It is so ORDERED.
h
DATED this 27' day of October, 2011 /
,F)
19 / If? If
20 �:J�-'L�
21 KENNETH R. HOWARD, JUDGE
22
23
24
25
26
27
28
015
016
• 1
•
1 CERTIFICATE OF SERVICE
2 Pursuant to NRCP 5 (b) , I certify that I am an employee of the
3
Reno Municipal Court, Reno, Nevada, and that on this date I served
4
a true and correct copy of the foregoing document, ORDER DENYING
5
MOTION TO CONTINUE TRIAL DATE AND APPOINTMENT OF LEGAL DEFENDER on
6
the party (ies) set forth below:
7
x Placing said document in a sealed envelope placed for

9
collecting and mailing in the United States mail, at
10
Reno, Nevada, postage prepaid , following ordinary
business practices.
11
Facsimile (FAX).
12
13
14
X Inner-office mail following ordinary business practices.
15
Personal Delivery.
16
17
City Attorneys Office
18 PO BOX 1900
Reno, NV 89505
19
Zachary Barker Coughlin
20
121 River Rock St.
Reno, NV 89501
21
22
23
c:
DATED this
C!
",J1.� day of October 2011
24
25
m
26
27
28
017
018
019
020
021
022
023
024
025
•
Zach Coughlin, Esq.

1
817 N. Virginia st. #2
3 Reno, NV 89501
Tele: 775-338-8118
Fax: 949-667-7402
5
Attorney for Defendant Coughlin
6
8
STATE OF NEVADA IN AND FOR
THE COUNTY OF WASHOE
10
11
CITY OF RENO;
Plaintiff.
12
13 v.
14 ZACHARY BARKER COUGHLIN

Defendant.
IS
16 ,, _________________________
________ 5
17 �-
---�
18
NOTICE OF APPEARANCE: MOTION FOR CONTINUANCE
19
It is important to state again here that the Bailiffwsa threatening and retaliatory
w
when the undersigned appeared before Judge Gardner on October 10, 20 II, including
21 making intimidating statements to the undersigned seemingly in a retaliatory fashion
and designed to prevent the undersigned from seeking court appointed representation.
22
The Bailiff's name might have been "Monte" or something similar, however, the
23
records of that interaction are being held under an impermissible rent distraint by an
opposing attorney. Obviously, such actions, when combined with the lack of a PD at
24 the arraignment, an arraignment video being shown by the court which contains
threatening statements and overly ominous tones when advising litigants against
l5
appearing pro se, the City of RenolReno Municpal Court's alleged practice of only
26 hiring "former prosecutors" to be court appointed counsel, in conjunction with the
failure to allow the defendant access to the PC sheet and discovery for over I month,
27 much less 48 hours from the arrest, combine to make a fair trial impossible in this
2lI
NOTICE OF APPEARANCE: MOTION FOR CONTINUANCE
Page I
026
matter.
Please note that the undersigned hereby files this Notice of Appearance as
counsel of record in this matter.
Reno Municipal Court rules

“Court Rules and Procedures Rule 1: Applicability of Rules A. These rules may
be referred to as the Reno Municipal Court rules and may be abbreviated as
R.M.C.R. These rules are intended to supercede the rules promulgated and made
effective on January 1, 1980 by the Reno Municipal Court. B. Whenever it appears
that a particular situation does not fall within the purview of a rule, or that a literal
application of a rule would cause a hardship or injustice in a case, the court may
make such order as the interests of justice require. Rule 2: Organization of the Court
A. The Municipal Court consists of a number of departments designated by City
Council resolution, each presided over by a judge duly elected or appointed to that
position. Judges pro tem may sit in each department from time to time as authorized
by law. A judge pro tem duly appointed and authorized by the presiding judge of a
particular department to sit in that department shall have the same jurisdiction as the
presiding judge, except that the judge pro tem has jurisdiction only over matters to be
heard on his or her assigned docket. Judges pro tem are not permitted to act on any
motion filed in any case, except those requiring resolution before a case can proceed
on the docket to which the pro tem judge is assigned. B. All cases set for trial or other
post-arraignment proceeding, except a sentencing set by the arraigning judge, shall be
randomly or sequentially assigned to one of the departments. Insofar as is practical,
all cases pertaining to a defendant shall be assigned to the same judge. In the event a
judge must recuse himself or herself, the matter shall be sent to the administrative
judge for reassignment to another department. C. The elected or appointed judges of
each department may act for one another by mutual agreement as circumstances
dictate. D. Each year, the elected or appointed judges shall select one of their number
NOTICE OF APPEARANCE; MOTION FOR CONTINUANCE

Page 2

027
to act as administrative judge for the upcoming fiscal year. The administrative judge
shall handle all court administrative matters and shall be authorized to speak publicly
for the court on matters of court policy. Rule 3: Authorization to Represent A.
Attorneys representing defendants shall promptly serve written notice of their
appearance with the City Attorney and file the same with the Court. B. An attorney
desiring to withdraw from a case shall file a motion with the court and serve the City
Attorney with the same. The court may rule on the motion or set a hearing. Rule 4:
Motions A. Except for good cause shown, all motions shall be accompanied by
affidavit, and, when appropriate, by points and authorities. All motions must be
served on the opposing party and must be file stamped along with accompanying
proof of service. B. The opposing party may file and serve answering points and
authorities on the moving party within 10 days after service of a motion. C. The
moving party may file and serve reply points and authorities within 5 days thereafter.
D. Upon the expiration of any time period set for response by this rule, either party
may file and serve a written request for submittal of the motion, or the court may
consider the motion submitted. E. An opposition to a motion must state the reason(s)
for objection. F. Motions shall be decided without oral argument unless oral
argument is ordered by the court. Rule 5: Motions by Facsimile A. All rules and
procedures that apply to motions filed in person at the court shall also apply to
motions filed by facsimile, except as otherwise specified in this rule. B. All persons
are eligible to use motion-by-facsimile procedures. C. All motions filed by facsimile
must be accompanied by a cover sheet which must include the person’s name,
address, fax number and telephone number. D. All facsimile motions filed by an
attorney must include the attorney's name, the firm’s name, address, fax number and
telephone number. In addition, the attorney’s state bar number must be conspicuously
displayed on the cover sheet. E. All motions filed by facsimile must be accompanied
by proof of service. Service may be accomplished by facsimile when the receiving

Page 3

028
party is a governmental agency, an attorney, or with the consent of the receiving
party. If service of the motion is accomplished by facsimile the 3-day allowance for
mailing shall not be computed into the time for response. F. A defense attorney filing
a motion in the first instance must also file a proper authorization to represent. G.
Any motion received by the court after 4:30 p.m. or on a non-court day shall be filed
on the following court day. Rule 6: Continuances No continuance shall be granted,
including a stipulated continuance, except for good cause. A motion or stipulation for
continuance must state the reason therefore and whether or not any continuance has
previously been sought or granted. Rule 7: Corporations Except with the permission
of the court, a corporation or other business entity shall not appear in propria persona.
Rule 8: Courtroom Conduct and Attire Proceedings in court should be conducted
with dignity and decorum. All persons appearing in the court must be appropriately
attired. All attorneys must wear appropriate business attire. Rule 9: Appeals to
District Court Except as otherwise provided in NRS 177.015 a defendant in a
criminal action tried before a Municipal Court Judge may appeal from the final
judgment therein to the Second Judicial District Court, at any time within 10 days
from the date that judgment is rendered. Effective January 1, 2000”
MOTION FOR SANCTIONS AND ATTORNEY'S FEES POINTS AND

AUTHORITIES Coughlin/Defendant, Zach Coughlin, Esq., hereby files MOTION
FOR SANCTIONS AND ATTORNEY'S FEES based on the papers on file in this
action, all correspondence between Roberts, Coughlin, Reno City Attorney Roberts,
Hylin, and others, and the points and authorities herein contained. Court-appointed
attorney as subject to liability under 42 U.S.C.A. § 1983. 36 A.L.R. Fed. 594
(Originally published in 1978). Public defenders are not immune from liability under
42 U.S.C.A. § 1983 for alleged conspiracy, with state officials, under color of state
law, to deprive clients of federal rights. Tower v. Glover, 467 U.S. 914, 104 S. Ct.

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2820, 81 L. Ed. 2d 758 (1984). Public defender may be held liable under § 1983 if he
or she engaged in a conspiracy with officials acting under the color of state law to
deprive a person of a right secured by the Con- stitution. 42 U.S.C.A. § 1983. Warren
v. Fischl, 33 F. Supp. 2d 171 (E.D.N.Y. 1999). County public defender acted under
"color of state law" in failing to request indigency hearing on behalf of motorist
convicted and fined for misdemeanor reckless driving, prior to motorist's
incarceration for failure to pay his fine, for purpose of § 1983 action against county
public defender's office, alleging that it had a policy or custom of failing to seek such
indigency hearings; the act of not requesting indigency hearing was administrative,
as it was due to the office's alleged systemic inaction. 42 U.S.C.A. § 1983. Powers v.
Hamilton County Public Defender Com'n, 501 F.3d 592 (6th Cir. 2007). Appointed
defense attorney was not immune from action under 42 U.S.C.A. § 1983 and § 1985,
either in his own right or derivatively from alleged co-conspirators' absolute
immunity, for conspiracy with judge and prosecutor to impanel all-white jury for
defendants criminal trial and may be regarded as having acted under color of state
law in view of conspiracy alleged with public officals. White v Bloom (1980, CA8
Mo) 621 F2d 276. Attorney's liability for malpractice in connection with defense of
criminal case, 53 A.L.R.3d 731. Negligence, inattention, or professional
incompetence in handling client's affairs as ground or disciplinary action, 96
A.L.R.2d 823. Joe Roberts has indicated to his client, Coughlin, that his superiors at
the WCPD have made him feel uncomfortable doing much in the way of defending
Coughlin, and that doing so with much zeal would adversely affect his opportunities
for advancement at the WCPD and perhaps even his job security. Ineffective
Assistance of Counsel, 5 Am. Jur. Proof of Facts 2d 267 Strategies for Enforcing the
Right to Effective Representation, 46 Am. Jur. Trials 571 Avoiding Legal
Malpractice Claims in Litigation, 46 Am. Jur. Trials 325 Prisoners' Rights litigation,
22 Am. Jur. Trials 1 Actions Against Attorneys for Professional Negligence, 14 Am.

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Jur. Trials 265 Cause of Action for Malpractice Against Defense Attorney for
Ineffective Representation During Pretrial Phase of Criminal Case, 42 Causes of
Action 2d 707. Bines, Remedying Ineffective Representation in Criminal Cases:
Departures from Habeas Corpus. 59 Va L Rev 927 Mallen, The Court-Appointed
Lawyer and Legal Malpractice—Liability or Immunity. 14 Am Crim L Rev 59 Note,
Remedying Ineffective Representation by Public Defenders—An Administrative Al-
ternative to Traditional Civil Actions. 60 Minn L Rev 123 Note, The Right of the
Indigent Client to Sue His Court-Appointed Attorney for Malprac- tice. 33 La L Rev
740. In each of the following cases, a public defender was held not to be immune
from liability for professional malpractice. In Spring v Constantino (1975) 168 Conn
563, 362 A2d 871, an action by a state criminal defendant against a public defender
for malpractice, the court held that an attorney occupying the position of public
defender and assigned to represent an indigent defendant did not enjoy immunity
from liability for professional malpractice. Stating that a public defender is like any
other attorney whose duties as an officer of the court and to an individual client and
whose principled and fearless conduct of the defense are not deterred by the prospect
of liability, the court rejected the contention of the public defender that the doctrine
of judicial immunity should be extended to public defenders on the ground that the
immunity rule is designed to promote principled and fearless decisionmaking by
removing the fear that unsatisfied litigants might bring harassing actions. The court
also rejected the contention that the common-law doctrine of sovereign immunity
which extends to public officials applied to a malpractice action brought against a
public defender, saying that a public defender, in representing an indigent, is not a
public official, since even though the state must insure that indigents are repres-
ented by competent counsel, it could not be argued that the actual conduct of the
defense of an individual is a governmental act. The court also rejected the third
suggested ground of immunity: the statutory immunity of public officers and state

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employees. The court said that while it was true that a public defender could be told
when he is to work and within what area, those elements of control were indicia of
the master-servant relationship and incidents of a public defender's employment
which are not within the scope of the attorney-client relationship. Stating that the
independence of the public defender was a key constitutional underpin- ning of the
public defender system, the court said that other than the source of the public de-
fender's compensation, the relationship of public defender and client is the same as
that of privately employed counsel and client. A public defender was held not to be
immune from liability for malpractice, in Reese v Danforth (1979) 486 Pa 479, 406
A2d 735, 6 ALR4th 758, In holding that the public defender was not a public official
entitled to immunity, the court said that the overriding duty of zealous
representation of a client's interest attaches to the role of the public defender and thus
the performance of that duty by the defender was similar to the performance of
privately retained counsel. Stating that the relationship between the county and the
public defender was similar to that between an independent contractor and the party
contracting his services, the court said that while the availability of court-appointed
counsel to represent indigents is indubitably the public business, once the
appointment of a public defender in a given case is made, his state or public function
ceases and thereafter he functions purely as a private attorney concerned with
servicing his client, and his professional relationship with his client takes on all the
obligations and protections attendant upon a private attorney-client relationship
except that the public pays the attorney's fee. The court also rejected the contentions
that not granting immunity to the public defender would hinder the recoupment of
able lawyers to represent indigents, and would inhibit the defender's professional
discretion in declining to press the frivolous, to assign priorities between indigent
litigants, and to make strategic decisions with regard to a particular litigant as to how
his interest may best be advanced. In the following case, a public defender was held

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not liable for the malpractice of one of his deputies. A public defender was held not
to be liable solely by virtue of his office, for the malpractice of one of his deputies,
in Sanchez v Murphy (1974, DC Nev) 385 F Supp 1362. Stating that the professional
relationship between court-appointed counsel and indigent criminal defendants
under public defender systems is no different than that between a client and privately
retained counsel, the court went on to say that the relationship of the public defender
and his deputies among themselves was not a partnership relationship, since the
economic justification for holding one partner liable for the misconduct of another
partner was grounded on the fact that fees for services are shared, whereas each of the
public defender attorneys was compensated independently by salary for his own
services. Stating that a deputy public defender is an independent officer, the court
noted that there was substantial authority in support of the rule that in the absence of
statute imposing liability or of negligence on his part in appointing or supervising his
assistants, a public officer is not liable for the default and misfeasance of assistants
appointed by him. Related Annotations are located under the Research References
heading of this Annotation. CUMULATIVE SUPPLEMENT Cases: Plaintiff's
malpractice action against public defender was not precluded by quasi-judicial
immunity. Wilcox v. Brummer, 739 So. 2d 1282 (Fla. Dist. Ct. App. 3d Dist. 1999).
Public defender attorneys were not entitled to sovereign immunity from legal
malpractice claims brought by former client convicted in criminal case and later
exonerated; attorneys' duty to client arose independently of their state employment.
Johnson v. Halloran, 312 Ill. App. 3d 695, 245 Ill. Dec. 408, 728 N.E.2d 490 (1st
Dist. 2000), appeal allowed, 189 Ill. 2d 688 (2000). The court in Dziubak v Mott
(1993, Minn) 503 NW2d 771 held that a public defender is immune from liability for
malpractice: In contrast, the court in Veneri v Pappano (1993, Pa Super) 622 A2d
977 noted that a public defender is not immune from liability for malpractice.
Attorney's liability for malpractice in connection with defense of criminal case, 53

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A.L.R.3d 731; The independence of the public defender is of utmost importance to its
duties to indigent defendants. Crist v. Florida Ass'n of Criminal Defense Lawyers,
Inc., 978 So. 2d 134 (Fla. 2008). Trial court's comments on perceived deficiencies of
public
defender system, made in its order denying defendant's request for 35–day
pretrial continuance of capital murder trial, did not create a conflict of interest
between defendant and public defender which required public defender to withdraw
from the representation. Sup. Ct. Rules, Rule 3.130, Rules of Prof. Con- duct, Rule
1.16(a). Furnish v. Com., 95 S.W.3d 34 (Ky. 2002), as modified, (Dec. 10, 2002). At
the hearing on the Competency Evaluation, Judge Sferrazza could be heard, during a
recess, making an excited utterance wherein he commented that the bill for the
ridiculous, baseless, and clearly motivated by a retaliatory intent request for a
Competency Evaluation made by PD Hylin would not be accepted by the Reno
Justice Court, and that it would be returned to the Public Defender's Office and they
could pay the bill for the Competency Evaluation if they wanted to waster money so
bad. Mr. Roberts, Please provide, in writing an inventory of everything you believe
you have provided me. Further, your flip disregard and non response in relation to my
FOIA requests and other requests, made in writing, asking you to file a Motion to
Dismiss, and other motions is truly troubling and reflects exceedingly poorly on your
level of professional responsibility. In fact, I have commenced an inquiry into
whether you have EVER filed a Motion to Dismiss on behalf of ANY client and,
similarly, whether you, in your long tenure at the WCPD have ever asked for
sanctions of any sort against the Reno City Attorney. In court, at a hearing featuring
Reno City Attorney Roberts, you walked over to Reno City Attorney Roberts's file,
without a hint of consternation from Reno City Attorney Roberts, and rifled through
his file looking for something, yet you deny me access to my file. That sort of
fraternization with the Reno City Attorney's Office (you still have not answered

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whether Reno City Attorney Roberts was in your retinue at the free trade coffee place
that day I saw you on the street) is inappropriate an reflects poorly on the legal
profession and the WCPD's Office, particularly in the context of your myriad refusals
to file even a single document in my defense, you cohorts forcing me into a
burdensome and insulting Competency Evaluation, your non response to my FOIA
request, the patently retaliatory falsehoods Mr. Hylin attributes to Jessica, your
receptionist, Mr. Bosler's hiring by Reno City Attorney Gammick, and all the other
13th chimes of the clock one hears in the tape from this case. Just a few turns on the
EQ, and this case could be a symphony of transparency. Coughlin further moves for
sanctions against Deputy City Attorney Roberts pursuant to NRS 7.085, for the
attorneys' fees Coughlin has needlessly incurred due to Roberts's cowardly, lethargic,
largesse and reckless uses of this court's processes.
ANALYSIS
If a Reno City Attorney has in his or her possession exculpatory video and audio
evidence, in addition to audio and video evidence which shows material witnesses
not only completely contradicting themselves, but also seeking to dissuade other
material witnesses from testifying, it would be troubling to see that Reno City
Attorney or someone filling in for him as some preliminary hearing to continue to
appear in court and stand behind the Criminal Complaint, all while collecting a
paycheck that is more and more put into rather stark relief in comparison to that
which similarly experienced and educated inviduals garner in the private sector.
Further, if other material witnesses can be seen in audio and video evidence
assaulting and battering an investigator asking questions related to exculpating the
accused in a matter, it would be all the more troubling to see a prosecutor continue to
appear in court advocating orally and filing documents in support of the allegations
of the criminal complaint. It is important to clarify statements made in court today
with respect to whether NRCP Rule 11 sanctions may be levied against a prosecutor.

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Such a proposition was met with general doubt today. However, Nevada law is quite
clear in this regard. Clearly, they can. Contrary to any indication in court today, the
Reno City Attorney does not play with some sort of special safety net the rest of the
attorneys in the state fail to have: Office of Washoe County Dist. Atty. v. Second
Judicial Dist. Court ex rel. County of Washoe, 116 Nev. 629, 5 P.3d 562 (2000) .
The Reno City Attorney absolutely is subject to NRCP 11, and so is any with the
Washoe County Public Defender's Office or the court appointed “four former
prosecutors” the Reno City Attorney and Reno Municipal Court call court
appointed defense attorneys.. "In a case brought by the district attorney to
enforce a Washington child support order in Nevada, the district court imposed
NRCP 11 sanctions against the district attorney for failing to discontinue
enforcement of the support order after the district court's previous ruling that
Washington had continuing exclusive jurisdiction to adjudicate the arrearage
amount. District attorney's office, as a non-party in underlying proceedings to
enforce out-of-state child support order, did not have right to appeal district court's
order imposing Rule 11 sanctions against the office, and thus writ of mandamus was
an available remedy. Office of Washoe County Dist. Atty. v. Second Judicial Dist.
Court ex rel. County of Washoe, 2000, 5 P.3d 562, 116 Nev. 629. District judge
abused his discretion in imposing $2,500 sanctions against city manager and city
attorney for their alleged failure to participate in good faith in settlement conference
and, therefore, petition for writ of mandamus to prevent district court from enforcing
sanctions would be granted; sanctions levied did not fit purported violations at issue.
City of Sparks v. Second Judicial Dist. Court In and For County of Washoe, 1996,
920 P.2d 1014, 112 Nev. 952. In the United States Supreme Court case of Buckley v.
Fitzsimmons, 509 U.S. 259, 113 S.Ct. 2606, 125 L.Ed.2d 209 (1993), the petitioner
alleged the prosecutors and police conspired to link the boot print at the murder scene
with his print by witness “shopping.” “At the time of this witness shopping the

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assistant prosecutors were working hand in hand with the sheriff's detectives....” Id. at
272, 113 S.Ct. 2606. The Court held the prosecutors were not entitled to absolute
immunity, stating: A prosecutor's administrative duties and those investigatory
functions that do not relate to an advocate's preparation for the initiation of a
prosecution or for judicial proceedings are not entitled to absolute immunity. Id. at
273, 113 S.Ct. 2606. See Gentile v. County of Suffolk, 926 F.2d 142 (2d Cir. 1991)
(holding that a county district attorney's long practice of ignoring evidence of police
misconduct and sanctioning and covering up wrongdoing could make the county
liable); Claude H. v. County of Oneida, 626 N.Y.S.2d 933 (App. Div. 1995) (holding
that district attorney's command that plaintiff be unlawfully arrested could support
action against county for false imprisonment). Nevada Rules of Professional
Conduct, Rule 3.8. Special Responsibilities of a Prosecutor. " The prosecutor in a
criminal case shall: (a) Refrain from prosecuting a charge that the prosecutor knows
is not supported by probable cause; (b) Make reasonable efforts to assure that the
accused has been advised of the right to, and the procedure for obtaining, counsel and
has been given reasonable opportunity to obtain counsel; (c) Not seek to obtain from
an unrepresented accused a waiver of important pretrial rights, such as the right to a
preliminary hearing; (d) Make timely disclosure to the defense of all evidence or
information known to the prosecutor that tends to negate the guilt of the accused or
mitigates the offense, and, in connection with sentencing, disclose to the defense and
to the tribunal all unprivileged mitigating information known to the prosecutor,
except when the prosecutor is relieved of this responsibility by a protective order of
the tribunal; (e) Not subpoena a lawyer in a grand jury or other criminal proceeding
to present evidence about a past or present client unless the prosecutor reasonably
believes: (1) The information sought is not protected from disclosure by any
applicable privilege; (2) The evidence sought is essential to the successful
completion of an ongoing investigation or prosecution; and (3) There is no other

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feasible alternative to obtain the information; (f) Except for statements that are
necessary to inform the public of the nature and extent of the prosecutor’s action and
that serve a legitimate law enforcement purpose, refrain from making extrajudicial
comments that have a substantial likelihood of heightening public condemnation of
the accused and exercise reasonable care to prevent investigators, law enforcement
personnel, employees or other persons assisting or associated with the prosecutor in a
criminal case from making an extrajudicial statement that the prosecutor would be
prohibited from making under Rule 3.6 or this Rule." Under Brady v. Maryland, 373
U.S. 83, 87 (1963), “the suppression by the prosecution of evidence favorable to an
accused ... violates due process where the evidence is material either to guilt or to
punishment....”United States v. Shaygan, 661 F.Supp.2d 1289, 1325 (S.D. Fla. 2009)
(judge reserved the right “to impose any further sanctions and/or disciplinary
measures as may be necessary against [the federal prosecutors] after reviewing the
results of the Justice Department’s investigation.”); United States v. Jones, No. CR
07-10289- MLW, 2010 WL 565478 (D.Mass. 2010) (court determined that
imposition of sanctions against AUSA or government for failure to adequately train
AUSA based on failure to disclose plainly material exculpatory evidence were
neither necessary nor appropriate where, since violation disclosure, AUSA, US
Attorney’s Office and DOJ officials took actions such as participating in discovery
training programs, which obviated need for sanctions). As for the Public Defender:
Roy B. Flemming, If You Pay the Piper, Do You Call the Tune? Public Defenders in
America's Criminal Courts, 14 LAW & SOC. INQUIRY 393 (1989)'. What Public
Defender? The undersigned was denied one in contravention of the Sixth
Amendment, and it doesn't matter if the state doesn't intent to seek jail time, one is
required where jail time is a possibility. Such a decision would constitute an
"objective" of the representation. See MODEL RULES OF PROFESSIONAL
CONDUCT Rule 1.2(a); ABA Standards for Criminal Justice, Standard 4-5.2

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"Control and Direction of the Case" (1992) (specifying that the decisions to be made
by the accused after full consultation with counsel include what pleas to enter,
whether to accept a plea agreement, whether to waive jury trial, whether to testify,
and whether to appeal). The lawyers who characteristically gravitate toward indigent
defense would not, it seems, easily adjust to a practice that involved adhering to a set
of overriding institutional objectives. Neither their training nor their impulses would
typically prepare public defenders to bend to the office's larger goals. In fact, the anti-
authoritarian nature of the work appealed to me as a staff lawyer. I expected to
represent my clients without either intervention or interference from my supervisors.
My clients' objectives were not only important, but the only ones that mattered. I
remain sensitive that by imposing institutional controls that to some extent curb the
rebellious spirit of defenders, the defender office might run the risk of changing both
the nature of defenders' practice and the type of lawyers who choose to join the
office. Clearly, if a criminal defendant has a legitimate and articulable basis for
wanting a Motion to Dismiss filed, it should be filed, even by a Public Defender
whose boss was chosen, in part, by the District Attorney. This is particularly true
where exculpatory audio and video evidence exists, and even more so where
extortion or other police misconduct is evident, such as coercive attempts to garner
consent to search, threats to bad mouth one to a professional licensure body,
excessive force, sexual battery, overcharging in a retaliatory manner in light of an
assertion of Fourth or Fifth Amendment rights, false imprisonment, etc.... By now,
the actions of Michael Nifong, the former District Attorney of Durham County, North
Carolina, that led to his disbarment are well known. See generally Robert P.
Mosteller, The Duke Lacrosse Case, Innocence, and False Identifications: A
Fundamental Failure to “Do Justice”, 76 Fordham L. Rev. 1337 (2007). Some argue
that the situation involving Nifong is an isolated case. Yet prosecutorial overreaching
has been an issue well before this headline-grabbing case came along. A recent report

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issued by the California Commission on the Fair Administration of Justice referred to
a study that reviewed 2,130 California appellate cases in which a claim of
prosecutorial misconduct was raised. Cal. Comm’n on the Fair Admin. of Justice,
Report and Recommendations on Professional Responsibility and Accountability of
Prosecutors and Defense Lawyers (2007), available at
http://www.ccfaj.org/documents/reports/prosecutorial/official/official report on
reporting misconduct.pdf. Of those 2,130 cases, 443 resulted in findings that
prosecutorial misconduct actually occurred. In 53 of the 443 cases, a reversal of
conviction was the result—the rest concluding that the misconduct was harmless
error. Perhaps the most disturbing statistic is that a follow-up study looking at half of
the cases resulting in a reversed conviction concluded that the prosecutor was not
referred to the California State Bar for discipline, which is required under California
law. If there is a positive aspect to the Duke Lacrosse saga, it is that Nifong’s actions
and ultimate disbarment have served to highlight the important issue of prosecutorial
misconduct and the need for effective remedies. Prosecutorial Misconduct and
Wrongful Convictions: Shaping Remedies for a Broken System, 2006 Wis. L. Rev.
399, 403 (2006). Moreover, assuming that the defendant is factually culpable, a
conviction secured through the improper actions of a prosecutor could be
unconstitutional and, thus, subject to reversal. The result is that the innocent are
convicted and the guilty go free, which can only exacerbate the public’s loss of trust
in the integrity of the criminal justice system. PROSECUTORIAL GUIDELINES In
performing their duties to seek justice, prosecutors are bound by constitutional
standards, case law governing trial conduct, and various ethics rules and standards
pertaining to the prosecutorial function. Rule 3.8 of the ABA Model Rules of
Professional Conduct (“Model Rules”) specifically covers the actions and
responsibilities of prosecutors. All state jurisdictions have an ethics rule imposing
special responsibilities on prosecutors, most based on Model Rule 3.8. Prosecutors

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are also guided by standards found in the ABA Standards for Criminal Justice
Prosecution Function and Defense Function (3d ed. 1993) (“ABA Standards”) and
the National District Attorneys Association Prosecution Standards (2d ed. 1991)
(“NDAA Standards”). In assessing the conduct of prosecutors, courts have oftentimes
looked to the ABA Standards for guidance. See, e.g., Miller v. North Carolina, 583
F.2d 701, 706 n.6 (4th Cir. 1978). For years, the U.S. Department of Justice (“DOJ”)
took the position that Assistant United States Attorneys (“AUSAs”) were exempt
from state ethics rules. The McDade Amendment in 1999 laid to rest this argument.
The amendment, attached as a rider to an appropriations bill, provides: An attorney
for the Government shall be subject to State laws and rules, and local Federal court
rules, governing attorneys in each State where such attorney engages in that
attorney’s duties, to the same extent and in the same manner as other attorneys in that
State. 28 U.S.C. § 530B(a). The Professional Responsibility Advisory Office within
the DOJ provides advice to AUSAs regarding ethical issues and choice-of-law
matters. EXAMPLES OF PROSECUTORIAL MISCONDUCT “Like the Hydra slain
by Hercules, prosecutorial misconduct has many heads.” United States v. Williams,
504 U.S. 36, 60 (1992) (Stevens, J., dissenting); see also Joy, supra, at 402 (listing
numerous forms of prosecutorial misconduct). This article focuses on five categories:
(1) suppression of evidence, (2) misuse of the media, (3) misconduct involving
witnesses, (4) investigative misconduct, and (5) trial misconduct. Any specific act of
prosecutorial misconduct may fall into more than one category. For example,
knowingly presenting perjured testimony would be misconduct involving a witness,
as well as a violation of the duty to disclose exculpatory evidence. Nifong committed
investigative misconduct in devising the photo array that led to the arrest of the three
lacrosse players. The accuser in the case, Crystal Mangum, had been shown two
photo arrays— one on March 16, 2006 and another on March 21, 2006—that did not
contain any “fillers.” Every single picture, 36 in total, that Mangum looked at was a

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lacrosse player. Mangum was unable to identify any of her alleged attackers. Then,
on March 31, 2006, Nifong suggested to the police that Mangum be shown
photographs of all 46 white members of the team at the same time. See Mosteller,
supra, at 1398. During this procedure, which occurred on April 4, 2006, Mangum, at
the direction of Nifong, was told that the police had reason to believe that all of the
men she was looking at were at the party where she was allegedly raped. Again, the
array contained no “fillers.” In essence, Mangum was told that she could not make a
wrong choice. It was at this time that Mangum identified the players who were later
charged. The direct consequence of this investigative misconduct was the indictment
of three innocent people. Trial Misconduct Prosecutorial misconduct during the
course of trial covers a broad spectrum. For example, a prosecutor may improperly:
introduce evidence, assassinate the character of a defendant, refer to the fact that a
defendant did not talk to the police or take the stand in his or her defense, make
inflammatory statements during closing argument, or attempt to bolster the credibility
of a prosecution witness. See generally, Lawless, supra, §§ 9–10; Gershman,
Misconduct, supra, §§ 10–11. ABA Standard 3-5.8 and NDAA Standard 85.1 govern
the scope of closing arguments. The NDAA Standard simply states: “Closing
arguments should be characterized by fairness, accuracy, rationality, and a reliance
upon the evidence or reasonable inferences drawn therefrom.” NDAA Standard 85.1.
The ABA Standard goes further and specifically states that a prosecutor should not
express his or her personal belief as to the veracity of any evidence or guilt of the
defendant. The ABA Standard also provides that a prosecutor should not appeal to
the prejudices of the jury. See ABA Standard 3- 5.8(b)– (c). Case law is filled with
innumerable instances of improper trial conduct—most of which is deemed harmless.
One prosecutor who repeatedly went over the line according to appellate courts is
Robert H. Macy, the former District Attorney of Oklahoma County, Oklahoma. See
Ken Armstrong, “Cowboy Bob” Ropes Wins—But at Considerable Cost, Chi. Trib.,

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Jan. 10, 1999, at 13. Called a “true patriot” by former Attorney General William Barr
and honored as “America’s prosecutor” by the Oklahoma Senate upon his retirement
in 2001, Macy left behind a string of cases commenting unfavorably on his trial
conduct. Paxton v. Ward, 199 F.3d 1197 (10th Cir. 1999); Washington v. State, 989
P.2d 960 (Okla. Crim. App. 1999); Ochoa v. State, 963 P.2d 583 (Okla. Crim. App.
1998); Torres v. State, 962 P.2d 3 (Okla. Crim. App. 1998); Le v. State, 947 P.2d 535
(Okla. Crim. App. 1997); Duckett v. State, 919 P.2d 7 (Okla. Crim. App. 1995);
Robinson v. State, 900 P.2d 389 (Okla. Crim. App. 1995); Hawkins v. State, 891
P.2d 586 (Okla. Crim. App. 1995); Hooker v. State, 887 P.2d 1351 (Okla. Crim.
App. 1994); Howell v. State, 882 P.2d 1086 (Okla. Crim. App. 1994);
McCarty v. State, 765 P.2d 1215 (Okla. Crim. App. 1985); Cantrell v. State, 697
P.2d 968 (Okla. Crim. App. 1985) (Parks, J., dissenting). The rebukes seem not to
have had any effect on his conduct. Nevada Rules of Professional Conduct Rule 1.2.
Scope of Representation and Allocation of Authority Between Client and Lawyer. (a)
Subject to paragraphs (c) and (d), a lawyer shall abide by a client’s decision
concerning the objectives of representation and, as required by Rule 1.4, shall consult
with the client as to the means by which they are to be pursued. A lawyer may take
such action on behalf of the client as is impliedly authorized to carry out the
representation. A lawyer shall abide by a client’s decision whether to settle a matter.
In a criminal case, the lawyer shall abide by the client’s decision, after consultation
with the lawyer, as to a plea to be entered, whether to waive jury trial and whether the
client will testify. (b) A lawyer’s representation of a client, including representation
by appointment, does not constitute an endorsement of the client’s political,
economic, social or moral views or activities. (c) A lawyer may limit the scope of the
representation if the limitation is reasonable under the circumstances and the client
gives informed consent. (d) A lawyer shall not counsel a client to engage, or assist a
client, in conduct that the lawyer knows is criminal or fraudulent, but a lawyer may

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discuss the legal consequences of any proposed course of conduct with a client and
may counsel or assist a client to make a good faith effort to determine the validity,
scope, meaning or application of the law. [Added; effective May 1, 2006.] Model
Rule Comparison—2006 Rule 1.2 (formerly Supreme Court Rule 152) is the same as
ABA Model Rule 1.2. Rule 1.3. Diligence. A lawyer shall act with reasonable
diligence and promptness in representing a client. [Added; effective May 1, 2006.]
Model Rule Comparison—2006 Rule 1.3 (formerly Supreme Court Rule 153) is the
same as ABA Model Rule 1.3. Investigative Misconduct Pressure to solve a crime
might lead a prosecutor to get intimately involved in the pre-trial investigation of a
matter. See ABA Standard 3-3.1 (“[T]he prosecutor has an affirmative responsibility
to investigate suspected illegal activity when it is not adequately dealt with by other
agencies.”). REMEDIES To date, prosecutorial misconduct—even the most
egregious—has largely gone unchecked. See Gershman, Misconduct, supra, at vi
(“Relatively few judicial or constitutional sanctions exist to penalize or deter
misconduct; the available sanctions are sparingly used and even when used have not
proved effective.”). In January 1999, the Chicago Tribune published a five-part series
titled: Trial & Error: How Prosecutors Sacrifice Justice to Win. Analyzing thousands
of cases, the newspaper found that since 1963 at least 381 defendants had their
convictions reversed either because prosecutors suppressed exculpatory evidence or
suborned perjury. Alarmingly, of those 381 cases, “not one of those prosecutors was
convicted of a crime. Not one was barred from practicing law. Instead, many saw
their careers advance, becoming judges or district attorneys. One became a
congressman.” Ken Armstrong & Maurice Possley, The Verdict: Dishonor, Chi.
Trib., Jan. 10, 1999, at 1. Criminal Prosecutions The criminal prosecution of a
prosecutor is extremely rare. According to the Chicago Tribune series, “[f]ew
prosecutors nationally have been indicted, and they were acquitted or, at worst,
convicted of a misdemeanor and fined.” Ken Armstrong & Maurice Possley, Break

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Rules, Be Promoted, Chi. Trib., Jan. 14, 1999, at 1 [hereinafter Armstrong & Possley,
Break Rules]. This statistic seems not to have changed in the last nine years.
Subsequent to the Tribune series, two separate cases were brought against
prosecutors for acts committed in their official capacity; neither resulted in
convictions. The first occurred in mid-1999— a case in which three former Illinois
state prosecutors were charged with conspiring to frame a man by the name of
Rolando Cruz for murder. Cruz spent nearly 10 years on Death Row before it became
clear that the prosecution had suppressed evidence that another person had
committed the crime and that prosecutors had conspired with police officers to
introduce a “dream statement” of Cruz’s into evidence at his original trial and two re-
trials. A judge dismissed charges against two of the prosecutors for insufficient
evidence. (One later became an Illinois judge—the other, an AUSA.) A jury
acquitted the third after a 28-day trial. See Andrew Bluth, Prosecutor and 4 Sheriff ’s
Deputies Are Acquitted of Wrongfully Accusing a Man of Murder, N.Y. Times, June
5, 1999, at A9. Rule 1.4. Communication. (a) A lawyer shall: (1) Promptly inform the
client of any decision or circumstance with respect to which the client’s informed
consent is required by these Rules; (2) Reasonably consult with the client about the
means by which the client’s objectives are to be accomplished; (3) Keep the client
reasonably informed about the status of the matter; (4) Promptly comply with
reasonable requests for information; and (5) Consult with the client about any
relevant limitation on the lawyer’s conduct when the lawyer knows that the client
expects assistance not permitted by the Rules of Professional Conduct or other law.
(b) A lawyer shall explain a matter to the extent reasonably necessary to permit the
client to make informed decisions regarding the representation. ...Added; effective
May 1, 2006; as amended; effective November 21, 2008.] Model Rule Comparison—
2007 Rule 1.4 (formerly Supreme Court Rule 154) is the same as ABA Model Rule
1.4, except that the 2007 amendments include language in paragraph (c) that was

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previously part of repealed Rule 7.2A(a) through (d) and (f) (formerly Supreme Court
Rule 196.5) which is Nevadaspecific language and has no counterpart in the Model
Rules. Disciplinary Actions Each state bar has a mechanism in place for the
discipline of misconduct by attorneys licensed in that state. Separately, federal courts
may discipline attorneys who appear before them, which may result in the suspension
or disbarment of attorneys from that particular court. See, e.g., In re Kramer, 282
F.3d 721 (9th Cir. 2002). Further, the DOJ’s Office of Professional Responsibility
(“OPR”) has responsibility for investigating allegations of misconduct committed by
AUSAs. It appears that these procedures are rarely effective in dealing with
prosecutorial misconduct. The disciplinary action against Nifong is unusual in that
not only did it result in disbarment, but because it was initiated while charges against
the Duke students were still pending. Recently, the Center for Public Integrity
conducted a study that found only 44 instances of disciplinary actions against
prosecutors since 1970. Of those 44: ? in 7, the court dismissed the complaint or did
not impose punishment; ? in 3, the court remanded the case for further proceedings; ?
in 24, the court assessed the costs of the proceedings against the prosecutor; ? in 20,
the court imposed a public or private reprimand or censure; ? in 1, the prosecutor was
placed on probation; ? in 12, the prosecutor’s license was suspended; ? in 2, the
prosecutor was disbarred. Neil Gordon, Misconduct and Punishment: State
Disciplinary Authorities Investigate Prosecutors Accused of Misconduct (2007),
http://www.publicintegrity.org/pm/default.aspx?act=sidebarsb&aid =39; see
generally Steve Weinberg et al., Ctr. for Pub. Integrity, Harmful Error: Investigating
America’s Local Prosecutors (2003). A follow-up to the Tulia case discussed above
revealed that the prosecutor, whose subornation of perjury and Brady violations led
to the wrongful convictions of scores of people, received two years of probation. See
Disciplinary Actions, 68 Tex. B.J. 753, 758 (2005). The OPR has the authority to
determine whether an AUSA committed “professional misconduct in the exercise of

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his or her authority to investigate, litigate or provide legal advice.” U.S. Dep’t of
Justice Office of Prof’l Responsibility, Analytical Framework (rev. 2005), available
at http://www.usdoj.gov/opr/framework.pdf. Professional misconduct is defined as
the intentional or reckless disregard “of an obligation or standard imposed by law,
applicable rule of professional conduct, or Department regulation or policy.” Id. If the
OPR determines that an AUSA committed professional misconduct, it recommends a
certain sanction to the attorney’s supervisor. Available sanctions range from a written
reprimand to removal. The OPR may also refer the matter to the bar disciplinary
authority in the jurisdiction in which the attorney is licensed. See U.S. Dep’t of
Justice Office of Prof’l Responsibility, Policies & Procedures, available at
http://www.usdoj.gov/opr/ polandproc.htm. In 2001, a General Accounting Office
report concluded that the OPR was ineffective in dealing with prosecutorial
misconduct. See News Advisory, U.S. House of Representatives, Committee on the
Judiciary, GAO Report Finds Significant Problems with Justice Department’s Office
of Professional Responsibility (Feb. 20, 2001), available at
http://www.judiciary.house.gov/legacy/news0220.htm. A recent highly-publicized
case illustrates the problem. Chief Judge Mark Wolf of the U.S. District Court,
District of Massachusetts found “extraordinary misconduct by the Department of
Justice in its investigation and prosecution of members of the Patriarca Family of La
Cosa Nostra.” Ferrara v. United States, 384 F. Supp. 2d 384, 387 (D. Mass. 2005), aff
’d, 456 F.3d 278 (1st Cir. 2006). Chief Judge Wolf found that AUSA “Jeffrey
Auerhahn, violated [his] clearly established constitutional duty to disclose . . . before
trial, important exculpatory information that directly negated [Vincent Ferrara’s and
Pasquale Barone’s] guilt on” murder charges. Id. The suppression of the evidence
was intentional according to Chief Judge Wolf. See id. at 393– 98. The First Circuit
agreed, stating: “[T]he government’s actions in this case . . . paint a grim picture of
blatant misconduct. The record virtually compels the conclusion that this feckless

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course of conduct . . . constituted a deliberate and serious breach of its promise to
provide exculpatory evidence.” Ferrara v. United States, 456 F.3d 278, 293 (1st Cir.
2006) (footnote omitted). The OPR investigated Auerhahn and concluded that he had
acted in reckless disregard of his duty to disclose exculpatory evidence.
I have been evicted and perhaps subject to an illegal lockout and unlawful rent
distraint by an attorney representing my Beverly Hills High School graduate
California Neurosurgeon landlord, who has spent approx $30,000 in attorneys fees
pursuing a summary eviction, and whose attorney is withholding my state issued
indentification, wallet, and all materials necessary to my law practice all in an
unlawful rent distraint prohibited by NRS 40.460 and 40.520. I am pursuing a
continuance of the upcoming hearing/trial, I cannot even access when that hearing is.
I have informed opposing counsel Roberts of some of the issues which will require
extensive discovery, a jury trial, and more time to afford myself a legitimate
opportunity to defend this case. I have not been served any Order responding to my
request for appointment of counsel, as I believe it is required even if the State does
not "intend" to seek jail time, where any incarceration is a possibility, the Sixth
Amendment guarantees it. Please note that my temporary address for now is: Zach
Coughlin, Esq. c/o Silver Dollar Motel 817 N. Virginia St., Unit # 2 Reno, NV 89501
The opposing counsel in the summary eviction matter is withholding my phone as
well and refusing to allow me to access any mail that may remain at the property
from those times when the USPS was processing my official Change of Address.
Email is the best way to get in contact with me during this transition period. For
instance, I am unware whether my Motion for Appointment of Counsel was granted
or not. I called Judge Howard's assistant and requested that she email me the docket
in this case and any pleadings or orders filed, including any order that may have
stemmed form any of my previous motions, as I am not sure how those were ruled
on. I believe my internet based fax service will allow me to receive those materials at

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my number 949 667 7402, though I would prefer email, but I know many
governmental entities prefer to fax such items. I am requesting a jury trial, a
substantial continuance, and the appointment of counsel. I object to the RMC's
practice of refusing to tell litigants who the 4 "house" appointed defenders are upon
questioning. Further, it has become clear that some of these "former prosecutors"
who are now the gang of four "house" defenders, do not even announce to accused
arraignees that they are, in fact, the defender or an attorney or that they may be
representing the arraignees. I am hereby filing a motion in limine regarding any
materials or information gleaned from the unlawful search by the RSIC Officer, who
clearly announced that they would base their probable cause to arrest and conduct a
search incident to arrest upon any failure to consent to a search by the accused.
Further, the alleged conduct did not occur in the Officer's presence, and I believe
there exists authority preventing a minor misdemeanor arrest and transport under
those circumstances. Additionally, more time is needed to conduct discovery in this
matter, especially in light of allegations that Walmart had previously threatened
individuals, including, perhaps, the accused, with retaliatory action, including illicit
abuse of process, for the purported attempts by someone to have the Walmart Return
Policy enforced, and to hold accountable all Walmart employees and managers, some
of whom have over a decade experience in their positions, who curiously "forget"
they Return Policy Walmart holds out to the public when it is convenient to do so,
the same Return Policy that Walmart used to drive out of business so many
competitors. Further, this case is likely to get extremely complicated given the
apparent conflict of interest stemming from the fact that the Walmart in question is
on land owned by the RSIC, which may own or employ the RSIC police, and which
is rented or owned in part by Walmart. I know Opposing Counsel Roberts may
appreciate a continuance as well and the opportunity it would afford her to fulfill her
NRCP 11 duty and other prosecutorial duties to conduct a reasonably diligent inquiry

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into these matters.....”I did obtain a copy of the "discovery" about the second day it
was made available to me from your office in person. At that time, no video evidence
was made available to me. Is there now some video or audio recording to which I
may be provided access? Would you mind just emailing me the names of the
intended witnesses. Do you believe you do not have a duty to make a reasonably
diligent inquiry of either Walmart or RSIC do assess the validity of the matters
mentioned in my last email, ie the retaliatory motive vis a vis Walmart and or the
impermissible search/ 42 USC Sec 1983 police misconduct of the RSIC officers?
Full view||Back to messagesRE: motion for continuance? 11/16/11 Pamela
RobertsTo Zach Coughlin From: Pamela Roberts (robertsp@reno.gov) Sent: Wed
11/16/11 5:12 PM To: Zach Coughlin (zachcoughlin@hotmail.com) Mr. Coughlin,
you should have already received a notice regarding the availability of discovery and
request for reciprocal discovery. You just need to call ahead at 334-2050 and arrange
to pick it up. You are entitled to copies of all the reports and witness statements and
video we may have on this case. Since I am not calling any additional witnesses that
are not already mentioned in the reports/statements, I am not obligated to send you an
additional list of witnesses. I am also not obligated to do any further investigation or
interviews. Pam Roberts. -----Original Message----- From: Zach Coughlin
<zachcoughlin@hotmail.com> To: <robertsp@reno.gov> Date: Wed, 16 Nov 2011
15:35:48 -0800 Subject: RE: motion for continuance Ms. Roberts, Thanks for your
reply. Please ascertain from Walmart whether any Walmart employees had, previous
to this incident, made any threats respecting maliciously having the accused banned
from Walmart's incident to a disagreement over Walmart staff and managers curious
practice of "forgetting" their return policy, despite some individuals having worked
there over 10 years....Further, I believe it relevant and part of your duty to provide
exculpatory information to ascertain whether the RSIC police officer made
statements wherein he attempted to coerce a consent to an impermissible search and

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further buttressed his probable cause finding to conduct a search incident to arrest,
expressly, in words, to the accused, upon the accused's failure to consent to such a
search. Please provide a list of any witnesses you intend to call at trial, including a
summation of the matters the will testify to, in addition to producing a copy or
making available for reproduction any documentation, audio, video, or other
materials intended to be used in any way at trial. Thank You,
-------------------------------------------------------------------------------- Date: Mon, 14
Nov 2011 10:36:45 -0800 From: robertsp@reno.gov To: zachcoughlin@hotmail.com
Subject: Re: motion for continuance Mr. Coughlin, we were closed on Friday and I
have just read your email. If you have not received confirmation from the Court that
your trial date has been continued, you will need to appear this afternoon at 1:00 pm
in Courtroom B of the Reno Municipal Court. We can discuss your case further at
that time and if we are unable to resolve the case, you can ask the Court again for a
continuance and I won't object. However, it is the Court's decision to grant your
motion to continue. It is also the Court's decision whether to appoint you a legal
defender. I do not plan to ask for jail time, so the Court is not required to appoint you
an attorney. In addition, you have no right to a jury trial in a misdemeanor case. I
hope your housing situation improves. See you this afternoon. Pam Roberts, Deputy
City Attorney. -----Original Message----- From: Zach Coughlin
<zachcoughlin@hotmail.com> To: <robertsp@reno.gov> Date: Fri, 11 Nov 2011
01:40:53 -0800 Subject: motion for continuance Dear Counselor Roberts, I believe
you are the prosecutor for the case against me, State v. Coughlin, which I believe is
still set for trial on November 14th, I think at 1pm. I am not totally sure that there is a
duty to serve you on such a thing, but I filed a Motion for Continuance and a Motion
for Appointment of Counsel sometime within about the last 10 days, I would say. I
believe I attempted to copy you on it, but have recently been evicted and its been a
very difficult time in terms of coordinating paperwork, etc., etc. I apologize for any

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inconvenience this may have cause you. I am unsure of whether the November 14th
trial is still set to take place. I believe fairness dictates that it be continued to a later
date. I have request counsel but have yet to receive any, or wait, I was denied a
request to receive counsel because Judge Howard said there is not a 6th amendment
right to counsel where, even though jail time is technically a possibility, the state
does not anticipate seeking jail time...or something like that, however, I found some
cases that say I should still get counsel appointed, especially where I show I am
indigent, and I believe I qualify as indigent rather easily. Can and would you agree to
a continuance? I believe I tried to contact about this prior to filing my Request for a
Continuance. I maintain my innocence in this case and feel any sort of conviction,
especially one involving any sort of theft based charge, would work a terrible
injustice and greatly damage my reputation and employment prospects. I want a jury
trial, too. Sincerely,”
The sanction was a private written reprimand. Not satisfied, Chief Judge Wolf
initiated his own disciplinary action against Auerhahn and wrote then- Attorney
General Alberto Gonzales a letter on June 29, 2007 criticizing the OPR. Associate
Deputy Attorney General David Margolis replied by letter to Chief Judge Wolf,
asserting that “the discipline imposed by the Department was consistent with,
correlated to, and proportional with the findings that resulted from OPR’s
investigation.” Letter from David Margolis to The Honorable Mark L. Wolf (Oct. 2,
2007). Still not satisfied, Chief Judge Wolf wrote Attorney General Michael
Mukasey. In this letter, Chief Judge Wolf noted that he assisted in the establishment
of OPR, but now has “serious questions about whether judges should continue to rely
upon the Department to investigate and sanction misconduct by federal prosecutors.”
Letter from The Honorable Mark L. Wolf to The Honorable Michael B. Mukasey
(Jan. 2, 2008). The letters may be found in the court files of Barone v. United States,
No. 98-11104 (D. Mass. 1998) and Ferrara v. United States, No. 00-11693 (D. Mass.

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2000). Sellers v. Fourth Judicial Dist. Ct., 119 Nev. 256, 71 P .3d 495 (2003), but,
see: NOTE: Awarding Attorney's Fees to Pro Se Litigants Under Rule 11, June,
1997, 95 Mich. L. Rev. 2308, Jeremy D. Spector. Sellers speaks to awards of
attorney's fees to prevailing parties in civil actions. It does not purport to speak to
attorney's fees awards stemming from Rule 11 violation, a situation where the
granting of attorney's fees to an attorney pro se litigant is far more accepted
throughout American jurisprudence. To wit: “states that have considered whether an
attorney proper person litigant may be awarded attorney fees are divided, with a
slight majority permitting such fees. Decisions approving fee awards to attorney
proper person litigants generally do so on the basis that an attorney is paid for
rendering legal services, and if he renders such services on his own behalf, it results
in as much pecuniary loss to him as if he paid another attorney to render the same
services. So, if a losing party must pay attorney fees anyway, it should make no
difference whether the fees are to be paid to an attorney representing himself or
another attorney employed by him. In short, "a lawyer's time and advice are his stock
in trade."...We interpret NRS 69.030 to require that all proper person litigants,
whether attorney or non-attorney, be obligated to pay attorney fees as a prerequisite
for an award of prevailing party attorney fees. This interpretation gives effect to the
Legislature's clear intent that the prevailing party in justice's court be reimbursed by
the losing party for out-ofpocket costs incurred to prosecute the suit. To interpret the
statute otherwise would require us to redefine what is meant by an attorney fee,
which is commonly understood to be the sum paid or charged for legal services.
Because Matthews represented himself and did not pay or incur any obligation to pay
attorney fees, the justice's court exceeded its jurisdiction by awarding such fees. We
therefore grant, in part, the petition for a writ of certiorari.” Sellers v. Fourth Judicial
Dist. Ct., 119 Nev. 256, 71 P .3d 495 (2003). NRS 69.030 “Prevailing party allowed
attorney's fee to be taxed as costs in justice court. The prevailing party in any civil

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action at law in the justice courts of this State shall receive, in addition to the costs of
court as now allowed by law, a reasonable attorney fee. The attorney fee shall be
fixed by the justice and taxed as costs against the losing party.”
AFFIRMATION Pursuant to NRS 239B.030 The undersigned does hereby affirm
that the preceding document does not contain the social security number of any
person.
DATED this November 29th, 2011
_/s/ Zach Coughlin

Zach Coughlin

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PROOF OF SERVICE
I, Zach Coughlin, declare: On November 29, 2011, I, Mr. Zach Coughlin served
the foregoing MOTION FOR SANCTIONS AND ATTORNEY'S FEES; emailing a
true copy thereof to:
Pam Robert, Esq.

Reno City Atty Office

robertsp@reno.gov
AFFIRMATION Pursuant to NRS 239B.030
The undersigned does hereby affirm that the preceding document does not
contain the social security number of any person.
DATED this November 29th, 2011
_/s/ Zach Coughlin

Zach Coughlin

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INDEX TO ATTACHMENTS
EXHIBIT 1: TWO LAW REVIEW ARTICLES ON PROSECUTORIAL
MISCONDUCT: “Crossing the Line: Responding to Prosecutorial Misconduct” (13
PAGES”, AND “PROSECUTORIAL MISCONDUCT” (33 PAGES)

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EXHIBIT 1

Page 32
057
ABA Section of Litigation Annual Conference, April 16 – 18, 2008:
Crossing the Line: Responding to Prosecutorial Misconduct
Crossing the Line:
Responding to Prosecutorial Misconduct
INTRODUCTION
Among lawyers, a prosecutor is in a unique position. Normally a lawyer is free to—indeed, expected
to—zealously advocate on behalf of his or her client. Prosecutors, however, are not simply advocates
for the government. They are also ministers of justice whose aim is not to “win a case, but that justice
shall be done.” Berger v. United States, 295 U.S. 78, 88 (1935). As such, “[i]t is as much his duty to
refrain from improper methods calculated to produce a wrongful conviction as it is to use every
legitimate means to bring about a just one.” Id.; see generally Bennett L. Gershman, The Prosecutor’s
Duty to Truth, 14 Geo. J. Legal Ethics 309 (2001).
By now, the actions of Michael Nifong, the former District Attorney of Durham County, North
Carolina, that led to his disbarment are well known. See generally Robert P. Mosteller, The Duke
Lacrosse Case, Innocence, and False Identifications: A Fundamental Failure to “Do Justice”, 76
Fordham L. Rev. 1337 (2007). Some argue that the situation involving Nifong is an isolated case. Yet
prosecutorial overreaching has been an issue well before this headline-grabbing case came along.
A recent report issued by the California Commission on the Fair Administration of Justice referred to a
study that reviewed 2,130 California appellate cases in which a claim of prosecutorial misconduct was
raised. Cal. Comm’n on the Fair Admin. of Justice, Report and Recommendations on Professional
Responsibility and Accountability of Prosecutors and Defense Lawyers (2007), available at
http://www.ccfaj.org/documents/reports/prosecutorial/official/official report on reporting
misconduct.pdf. Of those 2,130 cases, 443 resulted in findings that prosecutorial misconduct actually
occurred. In 53 of the 443 cases, a reversal of conviction was the result—the rest concluding that the
misconduct was harmless error. Perhaps the most disturbing statistic is that a follow-up study looking
at half of the cases resulting in a reversed conviction concluded that the prosecutor was not referred to
the California State Bar for discipline, which is required under California law. If there is a positive
aspect to the Duke Lacrosse saga, it is that Nifong’s actions and ultimate disbarment have served to
highlight the important issue of prosecutorial misconduct and the need for effective remedies.
Few would claim that any prosecutor intentionally sets out to seek the conviction of an innocent
person. Rather, it is argued that prosecutorial misconduct stems from a “win at all cost” mentality
underlying the desire to further a career, or a firm belief in the defendant’s guilt notwithstanding
admissible evidence. See Joseph F. Lawless, Prosecutorial Misconduct § 1:06, at 1-15 (3d ed. 2003).
Regardless of the causes, the effects of prosecutorial misconduct are distressing. Two different studies
of persons exonerated by DNA evidence have shown that prosecutorial misconduct played a role in
convicting an innocent person nearly half of the time. See Peter A. Joy, The Relationship Between
058
Prosecutorial Misconduct and Wrongful Convictions: Shaping Remedies for a Broken System, 2006
Wis. L. Rev. 399, 403 (2006). Moreover, assuming that the defendant is factually culpable, a
conviction secured through the improper actions of a prosecutor could be unconstitutional and, thus,
subject to reversal. The result is that the innocent are convicted and the guilty go free, which can only
exacerbate the public’s loss of trust in the integrity of the criminal justice system.
PROSECUTORIAL GUIDELINES
In performing their duties to seek justice, prosecutors are bound by constitutional standards, case law
governing trial conduct, and various ethics rules and standards pertaining to the prosecutorial function.
Rule 3.8 of the ABA Model Rules of Professional Conduct (“Model Rules”) specifically covers the
actions and responsibilities of prosecutors. All state jurisdictions have an ethics rule imposing special
responsibilities on prosecutors, most based on Model Rule 3.8. Prosecutors are also guided by
standards found in the ABA Standards for Criminal Justice Prosecution Function and Defense
Function (3d ed. 1993) (“ABA Standards”) and the National District Attorneys Association
Prosecution Standards (2d ed. 1991) (“NDAA Standards”). In assessing the conduct of prosecutors,
courts have oftentimes looked to the ABA Standards for guidance. See, e.g., Miller v. North Carolina,
583 F.2d 701, 706 n.6 (4th Cir. 1978).
For years, the U.S. Department of Justice (“DOJ”) took the position that Assistant United States
Attorneys (“AUSAs”) were exempt from state ethics rules. The McDade Amendment in 1999 laid to
rest this argument. The amendment, attached as a rider to an appropriations bill, provides:
An attorney for the Government shall be subject to State laws and rules, and local
Federal court rules, governing attorneys in each State where such attorney engages
in that attorney’s duties, to the same extent and in the same manner as other
attorneys in that State.
28 U.S.C. § 530B(a). The Professional Responsibility Advisory Office within the DOJ provides
advice to AUSAs regarding ethical issues and choice-of-law matters.
EXAMPLES OF PROSECUTORIAL MISCONDUCT

“Like the Hydra slain by Hercules, prosecutorial misconduct has many heads.” United States v.
Williams, 504 U.S. 36, 60 (1992) (Stevens, J., dissenting); see also Joy, supra, at 402 (listing
numerous forms of prosecutorial misconduct). This article focuses on five categories: (1) suppression
of evidence, (2) misuse of the media, (3) misconduct involving witnesses, (4) investigative
misconduct, and (5) trial misconduct. Any specific act of prosecutorial misconduct may fall into more
than one category. For example, knowingly presenting perjured testimony would be misconduct
involving a witness, as well as a violation of the duty to disclose exculpatory evidence.
Suppression of Evidence
[V]iolations of Brady are the most recurring and pervasive of all constitutional
procedural violations, with disastrous consequences: innocent people are wrongfully
059
convicted; the reputation of U.S. prosecutors suffer; and the absence of meaningful
legal and ethical enforcement and accountability has a corrosive effect on the
public’s perception of a justice system that often appears to be arbitrary, unjust, and
simply unreliable.
Bennett L. Gershman, Litigating Brady v. Maryland: Games Prosecutors Play, 57 Case W. Res. L.
Rev. 13, 15 (2007) [hereinafter Gershman, Litigating].
The key holding of Brady v. Maryland is that “the suppression by the prosecution of evidence
favorable to an accused upon request violates due process where the evidence is material either to
guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” 373 U.S. 83, 87
(1963). Arguably, because a Brady violation may occur even when the prosecutor acts in good faith,
the term “prosecutorial misconduct” in the suppression of evidence context should be used only when
the prosecutor intentionally withholds exculpatory material.
In United States v. Agurs, the Supreme Court explained that a prosecutor has a “constitutional duty of
disclosure” when he or she is in possession of evidence that would deny a defendant a fair trial if that
evidence were not disclosed. See 427 U.S. 97, 108 (1976). The Court has stressed that because a
prosecutor is in a different position to determine the materiality of a piece of evidence than is an
appellate court, “the prudent prosecutor will resolve doubtful questions in favor of disclosure.” Id.
The Supreme Court has clarified that the constitutional requirement that a prosecutor disclose
evidence that is favorable and material exists regardless of whether the defendant makes a request for
a specific piece of evidence, a general request for favorable evidence, or no request at all. United
States v. Bagley, 473 U.S. 667, 682 (1985). When considering the issue retrospectively, appellate
courts conclude that the duty existed when “there is a reasonable probability that, had the evidence
been disclosed to the defense, the result of the proceeding would have been different. A ‘reasonable
probability’ is a probability sufficient to undermine confidence in the outcome.” Id. Moreover, a
“prosecutor has a duty to learn of any favorable evidence known to the others acting on the
government’s behalf in the case, including the police.” Kyles v. Whitley, 514 U.S. 419, 437 (1995).
Finally, there is no constitutional significance between impeachment evidence and evidence that is
directly exculpatory. The key to a Brady violation is the materiality of the withheld evidence. See
Bagley, 473 U.S. at 676–78.
Ethical rules require more than the constitutional minimum of Brady. Although the NDAA Standards
seem to require only slightly more than the constitutional minimum, see NDAA Standard 25.4 (“The
prosecutor should disclose the existence or nature of exculpatory evidence pertinent to the defense.”),
the Model Rules and ABA Standards go further. Model Rule 3.8(d) provides that a prosecutor must:
make timely disclosure to the defense of all evidence or information known to the
prosecutor that tends to negate the guilt of the accused or mitigates the offense, and,
in connection with sentencing, disclose to the defense and to the tribunal all
unprivileged mitigating information known to the prosecutor, except when the
prosecutor is relieved of this responsibility by a protective order of the tribunal.
060
Likewise ABA Standard 3-3.11(a) provides:
A prosecutor should not intentionally fail to make timely disclosure to the defense, at
the earliest feasible opportunity, of the existence of all evidence or information which
tends to negate the guilt of the accused or mitigate the offense charged or which
would tend to reduce the punishment of the accused.
The commentary to ABA Standard 3-3.11 notes that this provision “is virtually identical to that
imposed by ABA model ethical codes, [and] goes beyond the corollary duty imposed upon prosecutors
by constitutional law.” (Footnote omitted.) See also Kyles, 514 U.S. at 437 (noting that Brady
“requires less of the prosecution than the ABA Standards for Criminal Justice, which call generally for
prosecutorial disclosures of any evidence tending to exculpate or mitigate”). Finally, ABA Standard 3-
3.11(c) warns that “[a] prosecutor should not intentionally avoid pursuit of evidence because he or she
believes it will damage the prosecution’s case or aid the accused.”
Nifong suppressed exculpatory evidence when he did not tell the defense team that DNA from
numerous males, none of it from any of the lacrosse players, was found in items obtained from the
complainant during her medical examination. This evidence was inconsistent with the complainant’s
allegations that she was raped by several of the team members. It also contradicted her claims that she
had not had sex with anyone in over a week prior to the alleged incident. See generally Stuart Taylor,
Jr. & KC Johnson, Until Proven Innocent (2007).
One of the most egregious cases of a prosecutor failing to disclose impeachment evidence occurred in
the small town of Tulia, Texas. In 1999, 38 people (36 of them black) were arrested on drug charges
and later convicted. The only evidence used to secure their convictions was the uncorroborated
testimony of one undercover officer with severe credibility problems. At a hearing several years later,
a judge determined that the prosecutor had failed to turn over evidence impeaching the officer’s
credibility, and stood silent when he knew the officer was committing perjury. All of the defendants
were either pardoned or had their convictions overturned. See Laura Parker, Court Cases Raise
Conduct Concerns, USA Today, June 26, 2003, at 3A. A more thorough discussion of how
prosecutors may evade their responsibility to disclose exculpatory evidence may be found in
Gershman, Litigating, supra.
Misuse of the Media

Ethical rules prohibit all lawyers involved in litigation or investigations from making statements to the
media that would prejudice the matter. Model Rule 3.6(a) provides:
A lawyer who is participating or has participated in the investigation or litigation of

a matter shall not make an extrajudicial statement that the lawyer knows or
reasonably should know will be disseminated by means of public communication and
will have a substantial likelihood of materially prejudicing an adjudicative
proceeding in the matter.
Model Rule 3.8(f), which applies specifically to prosecutors and is meant to protect a defendant’s
Sixth Amendment right to a fair trial, is worded similarly to Model Rule 3.6(a). It also imposes a duty
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on a prosecutor to take reasonable steps to prevent the entire prosecutorial team from making
prejudicial statements:
[E]xcept for statements that are necessary to inform the public of the nature and
extent of the prosecutor’s action and that serve a legitimate law enforcement
purpose, [a prosecutor shall] refrain from making extrajudicial comments that have
a substantial likelihood of heightening public condemnation of the accused and
exercise reasonable care to prevent investigators, law enforcement personnel,
employees or other persons assisting or associated with the prosecutor in a criminal
case from making an extrajudicial statement that the prosecutor would be prohibited
from making under Rule 3.6 or this Rule.
Standard 3-1.4 of the ABA Standards is basically an amalgam of Model Rules 3.6(a) and 3.8(f). The
full text of Standard 3-1.4 follows:
(a) A prosecutor should not make or authorize the making of an extrajudicial

statement that a reasonable person would expect to be disseminated by means of
public communication if the prosecutor knows or reasonably should know that it will
have a substantial likelihood of prejudicing a criminal proceeding.
(b) A prosecutor should exercise reasonable care to prevent investigators, law

enforcement personnel, employees, or other persons assisting or associated with the
prosecutor from making an extrajudicial statement that the prosecutor would be
prohibited from making under this Standard.
The DOJ has promulgated regulations governing the release of information in criminal cases. 28
C.F.R. § 50.2(a)–(b). The regulations provide that very general information about the defendant,
charging instrument, investigating agency, and circumstances of arrest may be released. § 50.2(b)(3).
Importantly, “[d]isclosures should include only incontrovertible, factual matters, and should not
include subjective observations.” § 50.2(b)(3)(iv). The regulations clearly prohibit dissemination of
“any information concerning a defendant’s prior criminal record,” § 50.2(b)(4), and also list numerous
types of information or opinions that a prosecutor “should refrain from making available.” §
50.2(b)(6). The United States Attorney Manual (“USAM”) contains guidelines to implement the
regulations, but cautions that they “do not create any rights enforceable in law or otherwise in any
party.” USAM § 1-7.001.
Improper extra-judicial statements include: releasing grand jury material, commenting on the bad
character of a defendant, referring to the crime as heinous or reprehensible, disclosing a defendant’s
confession, disclosing a defendant’s criminal record, discussing trial strategy, opining on the
defendant’s guilt, claiming that the government’s case is strong, and commenting on the defendant’s
lack of cooperation. See Bennett L. Gershman, Prosecutorial Misconduct §§ 6:3–:10 (2d ed. 2007)
[hereinafter Gershman, Misconduct]. But see 28 C.F.R. § 50.2(b)(6) (providing that a prosecutor
“should refrain” from giving an opinion as to the defendant’s guilt and referring to the defendant’s
character or confession).
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The Disciplinary Hearing Commission of the North Carolina State Bar determined that Nifong had
violated Rule 3.6(a) and 3.8(f) of North Carolina’s Revised Rules of Professional Conduct on at least
30 different occasions. A small sampling of the statements include:
“[O]ne would wonder why one needs an attorney if one was not charged and had not done anything
wrong.”
“The contempt that was shown for the victim, based on her race was totally abhorrent. It adds
another layer of reprehensibleness to a crime that is already reprehensible.”
“I would not be surprised if condoms were used. Probably an exotic dancer would not be your first
choice for unprotected sex.”
“I’m not going to let Durham’s view in the minds of the world to be a bunch of lacrosse players
from Duke raping a black girl in Durham.”
“What happened here was one of the worst things that’s happened since I have become district
attorney.”
“They don’t want to admit the enormity of what they have done.”
Nat’l Org. of Bar Counsel, Case of the Month (June 2007), http://www.nobc.org/cases/0607.asp.
Nifong’s numerous statements inflamed the public, the pool from which the jury would have been
drawn had the case gone to trial.
Misconduct Involving Witnesses

It should go without saying that a prosecutor acts unethically when he or she suborns perjury. Such
conduct undermines the integrity of our adversarial system and, at a minimum, violates Model Rule
3.3(a)(3), which prohibits any lawyer from knowingly offering false evidence. Similar to the Model
Rule, ABA Standard 3-5.6(a) succinctly states: “A prosecutor should not knowingly offer false
evidence, whether by documents, tangible evidence, or the testimony of witnesses, or fail to seek
withdrawal thereof upon discovery of its falsity.”
Beyond the ethics of presenting perjured testimony, the knowing use of such testimony “involve[s] a
corruption of the truth-seeking function of the trial process.” Agurs, 427 U.S. at 104. “[A] conviction
obtained by the knowing use of perjured testimony is fundamentally unfair, and must be set aside if
there is any reasonable likelihood that the false testimony could have affected the judgment of the
jury.” Id. at 103 (emphases added) (footnote omitted). This rule equally applies when a prosecutor,
“although not soliciting false evidence, allows it to go uncorrected when it appears,” even when the
uncorrected testimony goes to the credibility of the witness. Napue v. Illinois, 360 U.S. 264, 269
(1959).
In addition to the Tulia case discussed above, another well-known case of a prosecutor using perjured
testimony in order to obtain a conviction occurred in the Detroit “Sleeper Cell” terrorism trial.
Although the case was riddled with various forms of prosecutorial misconduct, perjury played a key
role.
Central to the prosecution’s case in United States v. Koubriti, No. 01-80778 (E.D. Mich.), was a sketch
recovered from the defendants’ apartment containing the words “Queen Alia” and “Hashemite
Kingdom of Jordan” written in Arabic. Indictment, United States v. Convertino, No.06-cr-20173, at 3
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(E.D. Mich. Mar. 29, 2006). The government presented testimony through a Department of State
Special Agent that he had traveled to the Queen Alia Military Hospital in Jordan and concluded that
the sketch was almost an exact representation of the facility. Among the agent’s assertions was that a
“very large dead tree” corresponded with a marking on the sketch and provided certainty that the
drawing depicted the hospital. See Bennett L. Gershman, How Juries Get It Wrong—Anatomy of the
Detroit Terror Case, 44 Washburn L.J. 327, 332–33 (2005). Both on direct and on cross, the agent
claimed that he had not taken any photographs of the facility because of security restrictions.
According to the DOJ, however, the truth was that the agent had taken numerous aerial photographs of
the facility at the request of the prosecutor, Richard Convertino. Although it appears Convertino never
received these specific photographs taken, he did obtain photographs of the Queen Alia Military
Hospital taken by the agent’s replacement. Not only did Convertino elicit perjury from the agent
during his direct testimony (and allow it to stand during cross-examination), Convertino never
disclosed to the defense the photographs he eventually did receive. Indictment, United States v.
Convertino, No.06-cr-20173, at 3–4. In an unprecedented case, the DOJ’s Public Integrity Section
charged and tried Smith and Convertino with obstruction of justice, perjury, and conspiracy. Id. Both
were acquitted.
Witness coaching can also be a form of prosecutorial misconduct. See generally Bennett L.
Gershman, Witness Coaching by Prosecutors, 23 Cardozo L. Rev. 829 (2002). Although witness
coaching has received scant attention from courts, a recent case may cause jurists to more closely
scrutinize this issue. A Virginia lawyer, Leslie Smith, represented William Jones, the co-defendant of
Daryl Atkins. Based on Jones’s testimony, Atkins received the sentence of death for the murder of
Eric Nesbitt. Atkins’s case went all the way to the Supreme Court, where the Court ruled that the U.S.
Constitution bars the execution of those with mental retardation. See Atkins v. Virginia, 536 U.S. 304
(2002). As of early 2008, however, Virginia was still trying to put Atkins to death, arguing that Atkins
was not mentally retarded.
Recently, Smith came forward and revealed that in 1997 prosecutors had coached his client, William
Jones, into providing testimony that more closely aligned with their theory that Atkins, and not Jones,
was the triggerman. Soon after the coaching had occurred, Smith went to the Virginia State Bar’s
ethics counsel, but was told that he could not disclose information about the coaching since it would
be detrimental to his client. Approximately ten years later, Smith finally came forward after getting
the green light from the Virginia State Bar because Jones’s case is now final. Because of Smith’s
account, a court in January 2008 commuted Atkins’s death sentence to life imprisonment. See Adam
Liptak, Lawyer Reveals Secret, Toppling Death Sentence, N.Y. Times, Jan. 19, 2008, at A1.
Investigative Misconduct
Pressure to solve a crime might lead a prosecutor to get intimately involved in the pre-trial
investigation of a matter. See ABA Standard 3-3.1 (“[T]he prosecutor has an affirmative responsibility
to investigate suspected illegal activity when it is not adequately dealt with by other agencies.”).
Although the line between investigating a crime and prosecuting a crime can be fuzzy, suffice it to say
that a prosecutor acts in an investigative capacity when gathering facts such as staging an undercover
operation or engaging in wiretapping. See generally Gershman, Misconduct, supra, § 1.
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Nifong committed investigative misconduct in devising the photo array that led to the arrest of the
three lacrosse players. The accuser in the case, Crystal Mangum, had been shown two photo arrays—
one on March 16, 2006 and another on March 21, 2006—that did not contain any “fillers.” Every
single picture, 36 in total, that Mangum looked at was a lacrosse player. Mangum was unable to
identify any of her alleged attackers. Then, on March 31, 2006, Nifong suggested to the police that
Mangum be shown photographs of all 46 white members of the team at the same time. See Mosteller,
supra, at 1398. During this procedure, which occurred on April 4, 2006, Mangum, at the direction of
Nifong, was told that the police had reason to believe that all of the men she was looking at were at
the party where she was allegedly raped. Again, the array contained no “fillers.” In essence, Mangum
was told that she could not make a wrong choice. It was at this time that Mangum identified the
players who were later charged. The direct consequence of this investigative misconduct was the
indictment of three innocent people.
Trial Misconduct
Prosecutorial misconduct during the course of trial covers a broad spectrum. For example, a
prosecutor may improperly: introduce evidence, assassinate the character of a defendant, refer to the
fact that a defendant did not talk to the police or take the stand in his or her defense, make
inflammatory statements during closing argument, or attempt to bolster the credibility of a prosecution
witness. See generally, Lawless, supra, §§ 9–10; Gershman, Misconduct, supra, §§ 10–11.
ABA Standard 3-5.8 and NDAA Standard 85.1 govern the scope of closing arguments. The NDAA
Standard simply states: “Closing arguments should be characterized by fairness, accuracy, rationality,
and a reliance upon the evidence or reasonable inferences drawn therefrom.” NDAA Standard 85.1.
The ABA Standard goes further and specifically states that a prosecutor should not express his or her
personal belief as to the veracity of any evidence or guilt of the defendant. The ABA Standard also
provides that a prosecutor should not appeal to the prejudices of the jury. See ABA Standard 3-5.8(b)–
(c).
Case law is filled with innumerable instances of improper trial conduct—most of which is deemed
harmless. One prosecutor who repeatedly went over the line according to appellate courts is Robert
H. Macy, the former District Attorney of Oklahoma County, Oklahoma. See Ken Armstrong,
“Cowboy Bob” Ropes Wins—But at Considerable Cost, Chi. Trib., Jan. 10, 1999, at 13. Called a “true
patriot” by former Attorney General William Barr and honored as “America’s prosecutor” by the
Oklahoma Senate upon his retirement in 2001, Macy left behind a string of cases commenting
unfavorably on his trial conduct. Paxton v. Ward, 199 F.3d 1197 (10th Cir. 1999); Washington v. State,
989 P.2d 960 (Okla. Crim. App. 1999); Ochoa v. State, 963 P.2d 583 (Okla. Crim. App. 1998); Torres
v. State, 962 P.2d 3 (Okla. Crim. App. 1998); Le v. State, 947 P.2d 535 (Okla. Crim. App. 1997);
Duckett v. State, 919 P.2d 7 (Okla. Crim. App. 1995); Robinson v. State, 900 P.2d 389 (Okla. Crim.
App. 1995); Hawkins v. State, 891 P.2d 586 (Okla. Crim. App. 1995); Hooker v. State, 887 P.2d 1351
(Okla. Crim. App. 1994); Howell v. State, 882 P.2d 1086 (Okla. Crim. App. 1994); McCarty v. State,
765 P.2d 1215 (Okla. Crim. App. 1985); Cantrell v. State, 697 P.2d 968 (Okla. Crim. App. 1985)
(Parks, J., dissenting). The rebukes seem not to have had any effect on his conduct.
The introduction of misleading (or patently false) forensic evidence has been publicized recently. As
Professor Gershman discusses in a law review article, “[t]he records of contemporary criminal trials
065
are replete with instances of so-called ‘junk science’ finding its way into courtrooms, and championed
by prosecutors to win convictions.” Bennett L. Gershman, Misuse of Scientific Evidence by
Prosecutors, 28 Okla. City U. L. Rev. 17, 30 (2003). Examples include tendering evidence of sloppy
or outright faulty lab work of otherwise reliable forensic tests, or the presentation of “scientific”
evidence of dubious quality such as bite-mark and hair analysis. See id. One example of faulty
forensic evidence is the FBI’s use of “compative-bullet lead analysis.” The procedure supposedly
allowed the FBI to match fired bullets found at a crime scene with unfired bullets in the possession of
a suspect. The FBI used the procedure for decades, but stopped doing so in 2005 after finally
acknowledging that the technique is unreliable and misleading. It is estimated that comparative bullet-
lead analysis played a role in convicting over 2,500 people. See John Solomon, FBI’s Forensic Test
Full of Holes, Wash. Post, Nov. 18, 2007, at A1.
REMEDIES
To date, prosecutorial misconduct—even the most egregious—has largely gone unchecked. See
Gershman, Misconduct, supra, at vi (“Relatively few judicial or constitutional sanctions exist to
penalize or deter misconduct; the available sanctions are sparingly used and even when used have not
proved effective.”). In January 1999, the Chicago Tribune published a five-part series titled: Trial &
Error: How Prosecutors Sacrifice Justice to Win. Analyzing thousands of cases, the newspaper found
that since 1963 at least 381 defendants had their convictions reversed either because prosecutors
suppressed exculpatory evidence or suborned perjury. Alarmingly, of those 381 cases, “not one of
those prosecutors was convicted of a crime. Not one was barred from practicing law. Instead, many
saw their careers advance, becoming judges or district attorneys. One became a congressman.” Ken
Armstrong & Maurice Possley, The Verdict: Dishonor, Chi. Trib., Jan. 10, 1999, at 1.
Criminal Prosecutions
The criminal prosecution of a prosecutor is extremely rare. According to the Chicago Tribune series,
“[f]ew prosecutors nationally have been indicted, and they were acquitted or, at worst, convicted of a
misdemeanor and fined.” Ken Armstrong & Maurice Possley, Break Rules, Be Promoted, Chi. Trib.,
Jan. 14, 1999, at 1 [hereinafter Armstrong & Possley, Break Rules]. This statistic seems not to have
changed in the last nine years. Subsequent to the Tribune series, two separate cases were brought
against prosecutors for acts committed in their official capacity; neither resulted in convictions.
The first occurred in mid-1999—a case in which three former Illinois state prosecutors were charged
with conspiring to frame a man by the name of Rolando Cruz for murder. Cruz spent nearly 10 years
on Death Row before it became clear that the prosecution had suppressed evidence that another person
had committed the crime and that prosecutors had conspired with police officers to introduce a “dream
statement” of Cruz’s into evidence at his original trial and two re-trials. A judge dismissed charges
against two of the prosecutors for insufficient evidence. (One later became an Illinois judge—the
other, an AUSA.) A jury acquitted the third after a 28-day trial. See Andrew Bluth, Prosecutor and 4
Sheriff’s Deputies Are Acquitted of Wrongfully Accusing a Man of Murder, N.Y. Times, June 5, 1999,
at A9.
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The second such prosecution of a prosecutor is the Convertino case discussed above. Convertino led
the U.S. government’s case in convicting two men on terrorism-related charges in 2003. Then-
Attorney General John Ashcroft asserted that the convictions sent a “clear message” that the DOJ
would “work diligently to detect, disrupt and dismantle the activities of terrorist cells in the United
States and abroad.” Danny Hakim, U.S. Asks for Dismissal of Terrorism Convictions, N.Y. Times,
Sept. 1, 2004, at A17. A little over a year later, however, the federal government asked the court to
throw out the convictions due, in part, to prosecutorial misconduct committed by the lead prosecutor,
Richard Convertino.
The DOJ’s Public Integrity Section eventually charged Richard Convertino with perjury, obstruction
of justice, and conspiracy in what may be the only time that the DOJ has ever charged an AUSA for
acts committed in his or her official capacity. Convertino was acquitted by a jury in October 2007 and
is now seeking reimbursement for attorney fees, alleging that the government’s prosecution of him
was vexatious, frivolous or in bad faith. Ironically, Convertino is in essence asserting that the
prosecution against him was itself an act of prosecutorial misconduct.
Disciplinary Actions
Each state bar has a mechanism in place for the discipline of misconduct by attorneys licensed in that
state. Separately, federal courts may discipline attorneys who appear before them, which may result in
the suspension or disbarment of attorneys from that particular court. See, e.g., In re Kramer, 282 F.3d
721 (9th Cir. 2002). Further, the DOJ’s Office of Professional Responsibility (“OPR”) has
responsibility for investigating allegations of misconduct committed by AUSAs. It appears that these
procedures are rarely effective in dealing with prosecutorial misconduct.
The disciplinary action against Nifong is unusual in that not only did it result in disbarment, but
because it was initiated while charges against the Duke students were still pending. Recently, the
Center for Public Integrity conducted a study that found only 44 instances of disciplinary actions
against prosecutors since 1970. Of those 44:
in 7, the court dismissed the complaint or did not impose punishment;

in 3, the court remanded the case for further proceedings;
in 24, the court assessed the costs of the proceedings against the prosecutor;
in 20, the court imposed a public or private reprimand or censure;
in 1, the prosecutor was placed on probation;
in 12, the prosecutor’s license was suspended;
in 2, the prosecutor was disbarred.
Neil Gordon, Misconduct and Punishment: State Disciplinary Authorities Investigate Prosecutors
Accused of Misconduct (2007), http://www.publicintegrity.org/pm/default.aspx?act=sidebarsb&aid
=39; see generally Steve Weinberg et al., Ctr. for Pub. Integrity, Harmful Error: Investigating
America’s Local Prosecutors (2003). A follow-up to the Tulia case discussed above revealed that the
prosecutor, whose subornation of perjury and Brady violations led to the wrongful convictions of
scores of people, received two years of probation. See Disciplinary Actions, 68 Tex. B.J. 753, 758
(2005).
10
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The OPR has the authority to determine whether an AUSA committed “professional misconduct in the
exercise of his or her authority to investigate, litigate or provide legal advice.” U.S. Dep’t of Justice
Office of Prof’l Responsibility, Analytical Framework (rev. 2005), available at
http://www.usdoj.gov/opr/framework.pdf. Professional misconduct is defined as the intentional or
reckless disregard “of an obligation or standard imposed by law, applicable rule of professional
conduct, or Department regulation or policy.” Id. If the OPR determines that an AUSA committed
professional misconduct, it recommends a certain sanction to the attorney’s supervisor. Available
sanctions range from a written reprimand to removal. The OPR may also refer the matter to the bar
disciplinary authority in the jurisdiction in which the attorney is licensed. See U.S. Dep’t of Justice
Office of Prof’l Responsibility, Policies & Procedures, available at http://www.usdoj.gov/opr/
polandproc.htm.
In 2001, a General Accounting Office report concluded that the OPR was ineffective in dealing with
prosecutorial misconduct. See News Advisory, U.S. House of Representatives, Committee on the
Judiciary, GAO Report Finds Significant Problems with Justice Department’s Office of Professional
Responsibility (Feb. 20, 2001), available at http://www.judiciary.house.gov/legacy/news0220.htm. A
recent highly-publicized case illustrates the problem.
Chief Judge Mark Wolf of the U.S. District Court, District of Massachusetts found “extraordinary
misconduct by the Department of Justice in its investigation and prosecution of members of the
Patriarca Family of La Cosa Nostra.” Ferrara v. United States, 384 F. Supp. 2d 384, 387 (D. Mass.
2005), aff’d, 456 F.3d 278 (1st Cir. 2006). Chief Judge Wolf found that AUSA “Jeffrey Auerhahn,
violated [his] clearly established constitutional duty to disclose . . . before trial, important exculpatory
information that directly negated [Vincent Ferrara’s and Pasquale Barone’s] guilt on” murder charges.
Id. The suppression of the evidence was intentional according to Chief Judge Wolf. See id. at 393–
98. The First Circuit agreed, stating: “[T]he government’s actions in this case . . . paint a grim picture
of blatant misconduct. The record virtually compels the conclusion that this feckless course of
conduct . . . constituted a deliberate and serious breach of its promise to provide exculpatory
evidence.” Ferrara v. United States, 456 F.3d 278, 293 (1st Cir. 2006) (footnote omitted).
The OPR investigated Auerhahn and concluded that he had acted in reckless disregard of his duty to
disclose exculpatory evidence. The sanction was a private written reprimand. Not satisfied, Chief
Judge Wolf initiated his own disciplinary action against Auerhahn and wrote then-Attorney General
Alberto Gonzales a letter on June 29, 2007 criticizing the OPR. Associate Deputy Attorney General
David Margolis replied by letter to Chief Judge Wolf, asserting that “the discipline imposed by the
Department was consistent with, correlated to, and proportional with the findings that resulted from
OPR’s investigation.” Letter from David Margolis to The Honorable Mark L. Wolf (Oct. 2, 2007).
Still not satisfied, Chief Judge Wolf wrote Attorney General Michael Mukasey. In this letter, Chief
Judge Wolf noted that he assisted in the establishment of OPR, but now has “serious questions about
whether judges should continue to rely upon the Department to investigate and sanction misconduct
by federal prosecutors.” Letter from The Honorable Mark L. Wolf to The Honorable Michael B.
Mukasey (Jan. 2, 2008). The letters may be found in the court files of Barone v. United States, No.
98-11104 (D. Mass. 1998) and Ferrara v. United States, No. 00-11693 (D. Mass. 2000).
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Contempt
A court could exercise its contempt powers to curb prosecutorial misconduct that occurs in the
courtroom. However, “[a]lthough contempt is frequently used to punish defense counsel for
misconduct, it is rarely used to punish prosecutors.” Gershman, Misconduct, supra, § 14:9 (footnote
omitted). Even when a trial court imposes contempt on a prosecutor, appellate courts rarely sustain
the charge. See id.; Lawless, supra, § 13.35.
Appellate Court Action

If prosecutorial misconduct violates a defendant’s constitutional rights to a fair trial, the defendant’s
conviction might be overturned on appeal. Reversals of convictions, however, are limited by the
harmless-error doctrine, which generally precludes relief when the court finds that the defendant was
not fundamentally prejudiced by the prosecutorial misconduct. See Rose v. Clark, 478 U.S. 570
(1986). The Center for Public Integrity looked at 11,452 appellate cases since 1970 where
prosecutorial misconduct was an issue raised by the defendant. The study revealed that in 2,012 cases
the prosecutor’s misconduct was so serious that a dismissal of the charges, a reversal of conviction, or
a reduction in the imposed sentence was warranted. In thousands of others, prosecutorial misconduct
was found to have occurred, but was deemed to be harmless. Steve Weinberg, Breaking the Rules:
Who Suffers When a Prosecutor Is Cited for Misconduct? (2007), http://www.publicintegrity.org/
pm/default.aspx?act =main; see generally Weinberg et al., supra.
One should ask whether a reversal of a conviction adequately sanctions a prosecutor for misconduct
since the focus is on the defendant, rather than the prosecutor. Moreover, many have questioned
whether prosecutorial misconduct is adequately deterred when the harmless-error doctrine is
consistently applied. For example, one commentator has asserted that application of the rule is
“tantamount to saying that if one is obviously guilty as charged, he has no fundamental right to be
tried fairly.” Note, Prosecutor Indiscretion: A Result of Political Influence, 34 Ind. L.J. 477, 486
(1959); see also Rose, 478 U.S. at 588–89 (Stevens, J., concurring) (“An automatic application of
harmless-error review in case after case, and for error after error, can only encourage prosecutors to
subordinate the interest in respecting the Constitution to the ever-present and always powerful interest
in obtaining a conviction in a particular case.”).
Another way appellate courts can address prosecutorial misconduct is by public rebuke. In Bank of
Nova Scotia v. United States, the Supreme Court stated that defendants should not be given a
“windfall” when they are not prejudiced by prosecutorial misconduct. 487 U.S. 250, 263 (1988). One
way to deal with prosecutorial misconduct when the defendant’s rights are not violated, according to
the Court, is for an appellate court to “chastise the prosecutor in a published opinion.” Id. The
effectiveness of this remedy has been questioned as well. An article in the Chicago Tribune series
noted that even when the prosecutor’s actions are criticized in appellate opinions, the courts usually do
not call out the prosecutors by name. According to the article, “[t]he granting of anonymity isn’t
mandated anywhere, but instead stems from tradition and professional courtesy.” Armstrong &
Possley, Break Rules, supra. Moreover, even when prosecutors are named in appellate opinions, there
is little evidence that it adversely impacts that person’s career or future conduct. See id.; supra Part
III.E (discussing the chastising of Robert H. Macy).
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Civil Liability
When being sued under federal civil rights laws, prosecutors often assert they are immune from
liability. The law is nuanced in this area, but prosecutors can be found liable. For example, a man by
the name of John Thompson spent 14 years on Death Row after an assistant district attorney destroyed
exculpatory evidence. A jury in the Eastern District of Louisiana awarded Thompson $14 million after
finding that the district attorney “was deliberately indifferent to the need to train, monitor, and
supervise his prosecutors to comply with the constitutional requirements concerning production of
evidence favorable to an accused.” Thompson v. Connick, No. 03-2045, 2007 WL 1200826, at *1
(E.D. La. April 23, 2007). The availability for redress under state tort law (e.g., malicious
prosecution) varies from jurisdiction to jurisdiction.
One avenue of relief for those wrongly prosecuted by the federal government is a Hyde Amendment
claim. See Department of Commerce, Justice, and State, the Judiciary and Related Appropriations Act
of 1998, Pub. L. No. 105-119, § 617, 111 Stat. 2440 (codified at 18 U.S.C. § 3006A Note). This law
provides for the recovery of attorney fees for prosecutions by the U.S. government that were
“vexatious, frivolous, or in bad faith.” To recover attorney fees, the defendant must be a “prevailing
party.” To determine whether a defendant is a prevailing party, courts look to the totality of the
circumstances. See, e.g., United States v. Campbell, 134 F. Supp. 2d 1104, 1107 (C.D. Cal. 2001),
aff’d, 291 F.3d 1169 (9th Cir. 2002). Generally, a defendant prevails when he or she “was completely
exonerated through voluntary dismissal of all charges without sanction, dismissal by way of a motion
of judgment for acquittal or dispositive motion, or through acquittal.” Id. at 1108. Moreover, a
defendant is a prevailing party when the government dismisses the case with prejudice, and may or
may not be considered as such when the case is dismissed without prejudice. See United States v.
Gardner, 23 F. Supp. 2d 1283, 1292 (N.D. Okla. 1998).
CONCLUSION
The Nifong / Duke Lacrosse saga brought to the public’s awareness the sad and disturbing nature of
prosecutorial overreaching. While Nifong’s actions may have been particularly egregious, it is clear
that the problem of prosecutorial misconduct is nothing new—it has simply taken place outside of
public view for the most part. It is also clear that, to date, there has not been an effective remedy to
this systemic problem. Hopefully something good can come out of the tragedy of the Duke case—
public awareness of the need to hold prosecutors accountable for misconduct, and a newfound
willingness of the courts, bar associations, and the DOJ to impose harsher sanctions on wayward
prosecutors.
13
070
PROSECUTORIAL MISCONDUCT
Jon Sands Steven Kalar Geoffrey Hansen

Federal Public Defender AFPD Chief Assistant Public Defender
Phoenix, Arizona San Francisco, California San Francisco, California
Chris Miles Peter Davids Jonathan Katchen

R&W Attorney, FPD Associate Assistant Attorney General
San Francisco, California Jones Day State of Alaska, Dept. of Law
The United States Attorney is the representative not of an ordinary party to a controversy,
but of a sovereignty whose obligation to govern impartially is as compelling as its
obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not
that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very
definite sense the servant of the law, the twofold aim of which is that guilt shall not
escape or innocence suffer. He may prosecute with earnestness and vigor– indeed, he
should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones.
It is as much his duty to refrain from improper methods calculated to produce a wrongful
conviction as it is to use every legitimate means to bring about a just one.
Berger v. United States, 295 U.S. 78, 88 (1935)
. . . it is the responsibility of the United States Attorney and his senior staff to create a
culture where ‘win-at-any-cost’ prosecution is not permitted. Indeed, such a culture must
be mandated from the highest levels of the United States Department of Justice and the
United States Attorney General. It is equally important that the courts of the United
States must let it be known that, when substantial abuses occur, sanctions will be imposed
to make the risk of non-compliance too costly.
United States v. Shaygan, 661 F.Supp.2d 1289, 1292 (S.D.Fla. 2009)
“The Court finds [the government’s] explanation wholly incredible.”
United States v. Stevens, 593 F.Supp.2d 177, 181 (D.D.Ct. 2009)
Prosecutorial Misconduct 1
071
Table of Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
I. Policing the Prosecutors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
A. Ethical Immunity Before 1998 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
B. The Citizens Protection Act of 1998, 28 U.S.C. § 530B . . . . . . . . . . . . . . 5
C. The Hyde Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
D. Criminal Contempt . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
E. Case Remedies - Mistrial, Dismissal, Jury Instruction . . . . . . . . . . . . . . . 9
II. Winning-At-All-Costs: Prosecutorial Misconduct During Various Phases of a Criminal
Prosecution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
A. Pre-Indictment Investigation and The Grand Jury . . . . . . . . . . . . . . . . . . 10
1. Subpoenas to Defense Counsel . . . . . . . . . . . . . . . . . . . . 10
2. Pre-indictment Contact with Represented Witnesses . . . 11
3. Exculpatory Evidence Before the Grand Jury . . . . . . . . . 12
4. Miscellaneous Prosecutorial Misconduct Within the Grand
Jury . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
B. Brady, Due Process, and State Ethical Rules on Discovery . . . . . . . . . . 14
C. Prosecutorial Misconduct During Trial . . . . . . . . . . . . . . . . . . . . . . . . . . 19
1. Misconduct During Jury Selection . . . . . . . . . . . . . . . . . 19
2. Improper Conduct During Opening Statements . . . . . . . 19
3. Ethical Problems with Government Witnesses and Trial
Evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
4. Improper Closing Arguments . . . . . . . . . . . . . . . . . . . . . 21
D. Broken Promises: Breached Pleas at Sentencing . . . . . . . . . . . . . . . . . . . 26
III. Normalizing Justice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
A. The Proposed Expansion of Rule 16 and DOJ’s Opposition . . . . . . . . . . 27
B. For the Defense – Commentators’ Opinions and Recommendations . . . 29
Parting Thoughts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
Appendices
072
Introduction
Most experienced practitioners would agree that the vast majority of federal prosecutors
behave in an ethical manner, and would further agree that federal prosecutorial misconduct has
been the exception, rather than the rule. As will be described in greater detail below, federal
prosecutorial misconduct is now a local inquiry as well as a constitutional inquiry – after 1998,
state ethical rules now also bind federal prosecutors. Therefore, while this outline may be a
useful starting point, counsel should be encouraged to turn to state bar rules of professional
responsibility and, if questions arise, consult an ethics hotline.
I. Policing the Prosecutors
A. Ethical Immunity Before 1998
Before the late1990's, the system of ethical rules and restraints that constrained any other
attorney – including defense counsel – did not apply to federal prosecutors. As will be discussed
in greater depth below, Congressman McDade’s 1998 Citizens Protection Act (“CPA” or “
§ 530B”) revolutionized the application of state rules to federal prosecutors in ways that have
still not been fully explored. Even before Joseph McDade successfully slipped the CPA into
law, however, national discontent about the special treatment of federal prosecutors had been
brewing.
Before 1998, federal prosecutors could be sanctioned for ethical misconduct by the
federal court in which they practiced, or by the Department of Justice. Many commentators –
including federal judges – were (and remain) dubious of the government’s ability to self-regulate
its attorneys. See, e.g., Lynn R. Singband, THE HYDE AMENDMENT AND PROSECUTORIAL
INVESTIGATION: THE PROMISE OF PROTECTION FOR CRIMINAL DEFENDANTS, 28
FORDHAM URB. L.J. 1967, 1978 (Aug. 2001) (discussing the creation – and limitations of – the
DOJ Office of Personal Responsibility (“OPR.”)). In 1993, Ninth Circuit Judge Kozinski, for
example, openly questioned the failure of the United States Attorney to supervise the ethical
behavior of its AUSAs:
How can it be that a serious claim of prosecutorial misconduct

remains unresolved – even unaddressed – until oral argument in
the Court of Appeals? Surely when such a claim is raised, we can
expect that someone in the United States Attorney’s office will
take an independent, objective look at the issue. The claim here
turned entirely on verifiable facts: A dispassionate comparison
between the transcript of the AUSA's statement to the jury and
Nourian's plea agreement would have disclosed that the defense
was right and the government was wrong. Yet the United States
Attorney allowed the filing of a brief in our court that did not own
up to the problem, a brief that itself skated perilously close to
misrepresentation.
United States v. Kojayan, 8 F.3d 1315, 1320 (9th Cir. 1993).

073
Despite the shortcomings of self-regulation, it was the common view that a federal
prosecutor was not subject to state or local ethical rules or restraints. This view was based on the
position that the Supremacy Clause of the United States Constitution preempted state regulation
of federal prosecutors, practical arguments about conflicts of local state rules arising in a
national federal practice, and a healthy dose of self-interest from the Department of Justice.
Two issues helped to sharpen the debate over the propriety of an exemption for federal
prosecutors from state ethical rules. See Fred C. Zacharias, Bruce A. Green, The Uniqueness of
Federal Prosecutors, 88 GEO. L.J. 207, 213 (2000). The first of these issues related to attorney
contact of represented parties. Though such contact was widely prohibited by state local rules,
in 1989 Attorney General Thornburgh distributed an infamous memorandum that purported to
exempt federal prosecutors. This memorandum was controversial both within and outside of the
legal community. See Dick Thornburgh, Ethics and the Attorney General: The Attorney General
Responds, 74 Judicature 290 (April/May 1991) (“Given the normally high quality of the articles
in Judicature, I had hoped to see a discussion of the Department of Justice’s policy on contacting
representing persons that was free of the near-hysteria that has punctuated articles written by
some members of the defense bar.”)
The second debate focused on a prosecutor’s ability to subpoena witnesses. Zacharias &
Green, supra at 212; see also Stern v. United States District Court, 214 F.3d 4, 7 (1st Cir. 2000)
(“The 1980s witnessed a dramatic increase in the number of subpoenas served on defense
attorneys by federal prosecutors. The reasons for this trend are difficult to pinpoint, but some
commentators have linked it with heightened efforts to fight organized crime and drug-
trafficking, new forfeiture laws, and an unprecedented expansion of the Department of Justice
(DOJ).”)
In the wake of the controversy of the Thornburgh memorandum, in 1994 Attorney

General Janet Reno issued formal regulations which continued the exemption for federal
prosecutors from state ethical violations, but promised voluntary compliance with most
professional rules (the “Reno Rule.”) Zacharias & Green, supra at 212; see also
Communications With Represented Persons, 59 FR 39910-01 (Aug. 4, 1994) (containing text of
the Reno Rule regarding contact with represented persons).
Also fueling the fire of this ethical debate were a number of developments that sharpened
the adversarial process and directly impacted the criminal defense bar, including federal grand
jury subpoenas to defense attorneys, forfeiture of funds paid by defendants to retained counsel,
and non-discretionary sentencing provisions in the Federal Sentencing Guidelines. See Rory K.
Little, Who Should Regulate the Ethics of Federal Prosecutors?, 65 FORDHAM L. REV. 355, Oct.
1996; see also Note, Federal Prosecutors, State Ethics Regulations, and the McDade
Amendment, 113 HARV. L. REV. 2080, 2083 (2000) (discussing three Model Rules of Ethics that
prompted national debate on state ethical limitations on federal prosecutors).
Outside of the national limelight of this ethical debate, however, a federal criminal
prosecution was brewing – a prosecution which led to a further attempt to formally regulate
federal prosecutors.
074
B. The Citizens Protection Act of 1998, 28 U.S.C. § 530B
In 1992, Pennsylvania Congressional Representative Joseph McDade was indicted with

five federal counts relating to bribery. While Congressman McDade admitted that “errors had
been made,” he denied the allegations.1 He kept his seat in office and – four years later – was
acquitted by a jury of all of the charges. Zacharias & Green, supra at 212.
McDade complained that federal prosecutors had turned his life “into a living nightmare”
and had harassed and hounded him.2 In his role as a criminal defendant, he filed a number of
motions alleging prosecutorial misconduct – all of which were denied. See, e.g., United States v.
McDade, No. 92-249, 1992 WL 187036, at *2 (E.D. Pa. July 30, 1992) (discussing motion to
dismiss arising from prosecutor’s alleged conflict of interest).
Stinging from his recent personal experiences with federal prosecutors, McDade
introduced in the House of Representatives a version of the Citizen Protection Act which would
have imposed state and local ethical rules on federal prosecutors (as well as a number of other,
wide-ranging changes). That bill was killed in committee, and a re-introduced bill the following
year also never made it out of committee. Zacharias & Green, supra, at 214-15. Finally, in 1998
the CPA was introduced as a rider to an appropriations bill, and was passed without ever clearing
committee – much to the chagrin of (DOJ advocate) Senator Hatch. Id. at 215. The bill’s unique
road to passage was a source of later criticism from DOJ allies and sparked later efforts at repeal;
efforts that were unsuccessful. See, e.g., NAAUSA Initiatives, Federal Prosecutor Ethics Act,
http://www.naausa/org./ initiatives/ethics.htm (visited Feb. 18, 2003) (discussing congressional
testimony of national AUSA representative against CPA and describing alternative bills
proposed).
The Citizen’s Protection Act has been codified at 28 U.S.C. § 530B.3
§ 530B. Ethical standards for attorneys for the Government
(a) An attorney for the Government shall be subject to State laws and rules, and local
Federal court rules, governing attorneys in each State where such attorney engages in that
attorney's duties, to the same extent and in the same manner as other attorneys in that State.
(b) The Attorney General shall make and amend rules of the Department of Justice to
assure compliance with this section.
(c) As used in this section, the term “attorney for the Government” includes any attorney
1
http://www.nytimes.com/1992/05/06/us/top-republican-on-a-house-panel
-is-charged-with-accepting-bribes.html?pagewanted=1 (last visited 4/7/10)
2
Id.
3
The Citizen’s Protection Act is referred to as the “CPA” or, more frequently, “§ 530B.”
075
described in section 77.2(a) of part 77 of title 28 of the Code of Federal Regulations and
also includes any independent counsel, or employee of such a counsel, appointed under
chapter 40.
28 U.S.C. § 530B (West 2003). Section 530B has been worked into the Code of Federal
Regulations (“CFR”) and integrated into the United States Attorney’s Manual. See, e.g., 28 CFR
§ 77.3 (applying 28 U.S.C. § 530B to all attorneys for the government involved in, among other
actions, all criminal investigations and proceedings); U.S.A.M. 9-13.200 (2005) (“Department
attorneys are governed in criminal and civil law enforcement investigations and proceedings by
the relevant rule of professional conduct that deals with communications with represented
persons.”).
As will be discussed in greater depth infra, remedies for violation of the CPA may be
sparse. In one of the few published cases on the new statute and regulations, the Eleventh
Circuit rejected the idea that a violation of a state ethical rule would support suppression of
evidence in federal court. See United States v. Lowery, 166 F.3d 1119, 1124-25 (11th Cir. 1999)
(“Assuming for present purposes that the rule is violated when a prosecutor promises a witness
some consideration regarding charges or sentencing in return for testimony, a state rule of
professional conduct cannot provide an adequate basis for a federal court to suppress evidence
that is otherwise admissible.”) Similarly, in United States v. Syling, the court held that any state
ethical standards would not “override the law governing presentation of [exculpatory] evidence
at grand jury proceedings.” 553 F.Supp.2d 1187, 1192 (D.Haw. 2008). Indeed, the CFR itself
provides that § 530B “should not be construed in any way to alter federal substantive,
procedural, or evidentiary law or to interfere with the Attorney General's authority to send
Department attorneys into any court in the United States.” 28 CFR § 77.1.
The First Circuit has flatly refused to view the CPA as an inroad for state (or local)
regulation of federal prosecutors in federal court. See Stern, 214 F.3d at 19. In Stern, the First
Circuit rejected a local rule from the District of Massachusetts that required judicial
authorization for grand jury subpoenas of defense attorneys. Id. Despite the clear language of
the CPA, the Court in Stern concluded that Congress did not mean to “empower state (or federal
district courts, for that matter) to regulate government attorneys in a manner inconsistent with
federal law.” Id.
Nonetheless, other federal courts have conceded that § 530B does extend state ethical
rules to federal prosecutors. See Jennifer Blair, The Regulation of Federal Prosecutorial
Misconduct by State Bar Associations, 28 U.S.C. § 530B and the Reality of Inaction, 49 UCLA
L. REV. 625, 637 (Dec. 2001) (collecting federal authority acknowledging the extension of state
ethical rules to federal prosecutors after 28 U.S.C. § 530B). One of the most thoughtful of these
decisions is United States v. Colorado Supreme Court, 189 F.3d 1281 (10th Cir. 1999). In that
case, the Tenth Circuit held that – in light of § 530B – a Colorado state ethical rule prohibiting
“federal prosecutors [from] subpoenaing attorneys to divulge information on past and present
clients in connection with a criminal proceeding other than a grand jury,” was not inconsistent
with federal law in violation of the Supremacy Clause of the United States Constitution. Id. at
1288-89.
076
The ultimate impact of § 530B on federal prosecutors remains an open question – one
commentator has discovered that during a year-and-a-half long period only one federal
prosecutor was disciplined out of the 1767 lawyers punished by ten state bar organizations.
Blair, supra, at 641 (“If punishment for prosecutors was previously “lax,” one federal prosecutor
disciplined out of the 1767 lawyers punished by ten state bar associations from April 1999 until
December 2000 does virtually nothing to increase the regulation of unethical behavior by federal
prosecutors.”)
Courts appear reluctant to file a complaint with a state bar organization. Currently, at
least one federal prosecutor is in state disciplinary proceedings after allegedly withholding
exculpatory evidence in a case.4 The district court judge on that case filed the letter of complaint
with state bar counsel after learning that DOJ had only issued a written reprimand to the
prosecutor.5 Another district court judge has reserved the right “to impose any further sanctions
and/or disciplinary measures as may be necessary against [the federal prosecutors] after
reviewing the results of the Justice Department’s investigation.” United States v. Shaygan, 661
F.Supp.2d 1289, 1325 (S.D. Fla 2009).
C. The Hyde Amendment
Another champion of ethical restraints on federal prosecutors has been Congressman

Hyde. In 1997, his infamous “Hyde Amendment” exposed the federal government to civil
liability for criminal lawsuits that are vexatious, frivolous, or in bad faith:
Attorney Fees and Litigation Expenses to Defense
Pub.L. 105-119, Title VI, § 617, Nov. 26, 1997, 111 Stat. 2519, provided that: "During
fiscal year 1998 and in any fiscal year thereafter, the court, in any criminal case (other
than a case in which the defendant is represented by assigned counsel paid for by the
public) pending on or after the date of the enactment of this Act [Nov. 26, 1997], may
award to a prevailing party, other than the United States, a reasonable attorney's fee and
other litigation expenses, where the court finds that the position of the United States was
vexatious, frivolous, or in bad faith, unless the court finds that special circumstances
make such an award unjust. Such awards shall be granted pursuant to the procedures and
limitations (but not the burden of proof) provided for an award under section 2412 of title
28, United States Code. To determine whether or not to award fees and costs under this
section, the court, for good cause shown, may receive evidence ex parte and in camera
(which shall include the submission of classified evidence or evidence that reveals or
might reveal the identity of an informant or undercover agent or matters occurring before
a grand jury) and evidence or testimony so received shall be kept under seal. Fees and
4
See “Boston AUSA Faces Judicial Panel Over Alleged Misconduct,”
http://www.mainjustice.com/2010/01/22/boston-ausa-faces-judicial-panel-regarding-alleged-mis
conduct/ (last visited 4/9/10).
5
Id.
077
other expenses awarded under this provision to a party shall be paid by the agency over
which the party prevails from any funds made available to the agency by appropriation.
No new appropriations shall be made as a result of this provision.
18 U.S.C. § 3006A, stat. history (West 2003).
Like § 530B, the Hyde Amendment had its origins in the eight-year prosecution of
Congressman McDade. See Singband, supra at 1981-82; see also United States v. Gilbert, 198
F.3d 1293, 198-99 (11th Cir. 1999) (tracing legislative history of the Hyde Amendment). The
Hyde Amendment has had some recent success in federal courts. See id. at 1986-88 (collecting
Hyde Amendment cases). See also United States v. Aisenberg, No. 899-CR-324-T23 MAP, 2003
WL 403071, *39 (M.D. Fla. Jan. 31, 2003) (“Pursuant to the Hyde Amendment, the Aisenbergs
are entitled to a reasonable attorney's fee in the amount of $2,680,602.22 and other litigation
expenses in the amount of $195,670.32.”); United States v. Shaygan, 661 F.Supp.2d 1289, 1324
(S.D.Fla 2009) (attorney’s fees and costs in the amount of $601,795.88 awarded to the
defendant); United States v. Claro, 579 F.3d 452, 456 (5th Cir. 2009) (noting the district court
awarded and government paid $391,292.29 in attorneys fees pursuant to Hyde Amendment);
United States v. Adkinson, 247 F.3d 1289 (11th Cir. 2001) (determining that defendants were
entitled to attorneys fees where government included bank fraud in conspiracy indictment with
knowledge that it was precluded by controlling precedent). See also Brown v. United States, SA-
03-CV-0792-WRF (W.D.Tex. 2007)(wherein parties reached settlement agreement and
government agreed to pay plaintiff $1,340,000 to settle plaintiff’s complaint filed under the
Federal Tort Claims Act based on nature of government’s criminal investigation and prosecution
of plaintiffs).
The Hyde Amendment certainly heightened the sensitivity of the DOJ to charges of
vexatious prosecution. See Elkan Abramowitz, Peter Scher, The Hyde Amendment: Congress
Creates a Toehold for Curbing Wrongful Prosecution, THE CHAMPION (Mar. 1998) (discussing
aggressive DOJ stance against Hyde Amendment before its adoption). The courts’ recent awards
suggest that the federal defense bar should continue to push for such recourse against the
government for wrongful prosecutions.6 See also Dick DeGuerin, Neal Davis, If They Holler,
Make ‘Em Pay . . . The Hyde Amendment, THE CHAMPION (Sept./Oct. 1999).7
6
Larry Breuer, head of DOJ’s Criminal Division, speaking at the ABA’s white collar
crime conference, called on the defense bar to refrain from terming discovery violations as
endemic stating that “nothing could be further from the truth.” He criticized those who “think it
is acceptable to use motions for sanctions, or threats of OPR referrals, as a way to gain some sort
of strategic litigation advantage.” http://www.mainjustice.com/2010/02/25/
breuer-tells-white-collar-bar-to-ease-up-on-prosecutors/ (last visted 4/12/10).
7
This Champion article is an excellent starting point for any Hyde Amendment
litigation, and includes a useful check-list for defense counsel to review before initiating a Hyde
Amendment petition.
078
D. Criminal Contempt
The five DOJ employees who prosecuted Senator Ted Stevens in United States v. Stevens
are currently the subject of criminal contempt proceedings instigated by U.S. District Court
Judge Emmet Sullivan based in part on allegations of Brady and Giglio violations.8 Judge
Sullivan appointed a special counsel to examine the conduct of the prosecutors after the Justice
Department moved to dismiss the case with prejudice. The DOJ’s Office of Professional
Responsibility is conducting a simultaneous investigation. Both reports are due to be completed
in the near future.
E. Case Remedies - Mistrial, Dismissal, Jury Instruction
Unethical behavior or improper methods by the prosecutor may result in a mistrial or a

reversal of a conviction where the methods “so infect the trial with unfairness as to make the
resulting conviction a denial of due process.” Darden v. Wainwright, 477 U.S. 168, 181 (1986).
In United States v. Ted Stevens, the government itself motioned to set aside the verdict and
dismiss the case with prejudice based on admitted Brady violations. The judge voided the
conviction. In United States v. Chapman, the district court determined that the prosecutor
violated both Brady and Giglio and the district court declared a mistrial. 524 F.3d 1073, 1083-
84 (9th Cir. 2008).9 Following a hearing on the matter, the district court judge dismissed the
indictment with prejudice. Id. In United States v. W.R. Grace, CR 05-07-M-DWM (D.Mt
2009), based on the government’s Brady and Giglio violations, the court explained to the jury
why the government would not be permitted to do any redirect examination of one of the
government’s main witnesses and why they should view “any proof offered by [that main
witness] with skepticism.” See Appendix A W.R. Grace Jury Instruction. The court instructed
the jury, in part, that, “the Department of Justice and the United States Attorney’s Office have
violated their constitutional obligation to the defendants and they have violated orders of the
court.” Id.
At the appellate level, “review of prosecutorial misconduct . . . consists of a two part test:
first, was the prosecutor’s conduct actually improper; second, did the misconduct, taken in the
context of the trial as a whole, violate the defendant’s due process rights.” Andrew M.
Hetherington, Prosecutorial Misconduct, 90 GEO. L.J. 1679 (May 2002). In evaluating the
seriousness of the misconduct, courts will find “harmless error if the misconduct was not severe,
effective curative measures were taken by the trial court, or if the weight of evidence made
conviction certain absent the improper conduct.” Id. at 1689 (footnotes omitted). Some courts
will additionally “consider whether the misconduct was deliberately or accidentally made [and]
the extent to which the defense was able to counter the improper conduct with rebuttal, or both,
8
http://www.mainjustice.com/2009/10/21/welch-to-step-down-as-public-integrity-chief/
(last visited 4/9/10).
9
On appeal, the Ninth Circuit held that the mistrial was supported by a valid
determination of manifest necessity and thus, a retrial of the defendant would not violate the
Double Jeopardy Clause. Chapman, 524 F.3d 1073, 1083-84 (9th Cir. 2008)
079
to their evaluation of the seriousness of misconduct.” Id.
The one, universal lesson from all authority regarding remedies for prosecutorial
misconduct is the need to object to preserve the error. Timidity in the face of prosecutorial
misconduct will injure the client on later appellate review, where the (nearly insurmountable)
plain error standard will be applied.
II. Winning-At-All-Costs: Prosecutorial Misconduct During Various Phases of a

Criminal Prosecution
With the McDade and Hyde laws in hand and remedies in mind, we turn to examples of
prosecutorial misconduct as they arise during various stages of a criminal prosecution and
investigation.
A. Pre-Indictment Investigation and The Grand Jury
1. Subpoenas to Defense Counsel
Grand jury misconduct was one of the ethical issues that sparked the McDade revolution,
and yet five years after § 530B was enacted, it still remains an unsettled issue. One of the most
controversial aspects of grand jury practice has been the issuance of a grand jury subpoena to
defense counsel, to secure information about a counsel’s client. The American Bar Association
has promulgated model ethical rules that limit this type of grand jury subpoena. See Appendix B,
ABA Model Rule of Professional Conduct 3.8(e). Because the ABA Model Rules have been
adopted in many states, after § 530B the issue is ripe for conflict in federal court. State ethical
rules in Colorado provide a good example of the problem.
Grand jury subpoenas to defense counsel on the subject of their representation are
prohibited by Colorado state ethical rules. See Appendix C, Colorado State Rule of Professional
Conduct 3.8, Special Responsibilities of a Prosecutor.10 The federal government’s policy of
10
Because this state rule is based on rules from “ABA Standards of Criminal Justice
Relating to the Prosecution Function,” the conflict between this state ethical rule and federal
action is likely to arise more frequently. A non-exhaustive list of states that have adopted Model
Rule 3.8, Special Responsibilities of a Prosecutor, (or a substantially-similar rule), includes
Arizona, Colorado, Arkansas, Connecticut, Delaware, Indiana, Kansas, Maryland, Michigan,
New Jersey, Massachusetts, Rhode Island, South Carolina, and West Virginia. California is
currently proposing such an adoption. See, e.g., http://calbar.ca.gov/calbar/pdfs/public-comment
/2009/Revision-Rules-Professional-Conduct-11-Rules_11-13-09.pdf (comparing and contrasting
other states’ adoption and California’s proposed changes) (last visited 4/9/10); Arizona v.
Talmadge, 999 P.2d 192, 197 (Az. S. Ct. 2000) (discussing E.R. 3.8, Arizona Rules of
Professional Conduct); Colorado v. Mucklow, 35 P.3d 527, 534 (Co. S.Ct. 2000) (discussing
Colo. RPC 3.8(d)); Arkansas R. Prof. Conduct 3.8 (West 2002); Connecticut Rule Prof. Conduct
3.8 (West 2002); Del. R. Prof. Conduct 3.8 (West 2002); Indiana R. Prof. Conduct 3.8 (West
2003); Kansas v. Dimaplas, 978 P.2d 891, 894 (Ka. S.Ct. 1999); Md. R. Prof. Conduct 3.8 (West
080
forcing defense counsel to testify regarding their clients thus became an issue for the Tenth
Circuit. See United States v. Colorado Supreme Court, 189 F.3d 1281, 1284 & n.3 (10th Cir.
1999).
The Tenth Circuit noted that before § 530B (McDade’s Citizen Protection Act) was
adopted there had been a circuit split on the issue of federal grand jury subpoenas to defense
counsel, over state ethical prohibitions. See United States v. Colorado Supreme Court, 189 F.3d
1281, 1284 & n.3 (10th Cir. 1999) (discussing contrary authority permitting, and striking, local
rules limiting federal government grand jury subpoenas of defense counsel). In Colorado
Supreme Court, the Tenth Circuit managed to avoid the grand jury issue because that particular
aspect of the Colorado state rule was not appealed. Id. at 1284.
The short, and unsatisfying, answer is that there is now no definitive authority on whether
§ 530B extends state ethical prohibitions on grand jury subpoenas to defense counsel. See
Brenner & Shaw, Federal Grand Jury: A Guide To Law And Practice, FED. GRAND JURY § 13.5
(discussing conflicting authority on issue and Department of Justice Guidelines).
If faced with such a subpoena, the first step should be to turn to state ethical rules to see
whether they prohibit such action (likely to be found in Rule 3.8, adopted from the ABA Model
Rule). Defense counsel will then need to argue that this state ethical rule has been extended to
the federal prosecutor by virtue of 28 U.S.C. § 530B, and that this statute trumps any Supremacy
Clause issues.
2. Pre-indictment Contact with Represented Witnesses
Does a federal prosecutor violate state ethical rules when he or she speaks to a
represented witness before indictment? That was the question before the Ninth Circuit in one of
the lead cases on the subject, United States v. Talao, 222 F.3d 1133 (9th Cir. 2000). In Talao, a
federal prosecutor spoke to an employee of a corporation that was represented by counsel –
before indictment, and while that corporate counsel was banging on the door of the interview
room. Id. at 1136. The district court held that the prosecutor had violated California ethical rule
2-100, prohibiting contact with represented persons. Id. at 1136. The Ninth Circuit reversed, but
not before articulating several important rules regarding federal prosecutors, ethics, and contact
with represented persons.
As an initial matter, it was by no means clear that pre-indictment contact with

represented persons was prohibited. The Court turned to the Second Circuit’s decision in United
States v. Hammand, 858 F.2d 834 (2d Cir. 1988), and concluded that there was no bright-line
2002); Michigan R. Prof. Conduct 3.8 (West 2003); New Jersey v. Torres, 744 A.2d 699, 708
(N.J. S. Ct. 2000) (discussing R.P.C. 3.8); In re: Grand Jury Investig., 15 Mass. L. Rptr. 354
(Super. Ct. Mass. 2002) (mem.) (discussing Mass. R. Prof. Conduct 3.8(f)); RI Rule Prof.
Conduct 3.8 (West 2002); South Carolina v. Quattlebaum, 338 S.E.2d 105, 109 (S.C. S. Ct.
2000) (discussing South Carolina R. Prof. Conduct 3.8); West Va. R. Prof. Conduct 3.8 (West
2002).
081
categorical rule on the issue. Id. at 1139. The Ninth Circuit concluded that in the pre-indictment
procedural context of the Talao case, there were “fully defined adversarial roles”11 that triggered
the ethical prohibition. Id.
The Court also was not troubled by the controversy over DOJ’s previous position and the
Thornburgh memorandum, which permitted contact with represented witnesses. Id. at 1139-40.
The Ninth Circuit flatly concluded that 28 U.S.C. § 530B made state ethical rules applicable to
federal attorneys, which “dissipated” any previous dispute. Id. at 1140.
The Court in Talao ultimately let the prosecutor off of the ethical hook, however, because
it concluded that in the unique circumstances of a disgruntled employee seeking to distance
herself from corporate counsel – an employee who was alleging subornation of perjury by the
lead defendant – Rule 2-100 did not preclude contact. Id. at 1140.
The Talao case is notable because it un-hesitantly extends state ethical rules to federal
prosecutors, extends the prohibition of represented-witness contact to the pre-indictment context,
and it suggests that under a less-unique factual setting the disciplinary referral would have stood.
3. Exculpatory Evidence Before the Grand Jury
Consider the following hypothetical: The defendant is charged with being a felon in
possession of a gun, in violation of 18 U.S.C .§ 922(g)(1). During his arrest, his girlfriend
protests that it was her gun, and that the defendant was unaware that the weapon was in the
house. Need the AUSA present the girlfriend’s exculpatory statement to the grand jury before
indictment?
The federal rule – before § 530B – has been that a federal prosecutor need not present
exculpatory evidence to the grand jury. See United States v. Williams, 504 U.S. 36, 52 (1992)
(“Imposing upon the prosecutor a legal obligation to present exculpatory evidence in his
possession would be incompatible with this [grand jury] system.”) Yet, despite the Williams rule,
the United States Attorneys Manual states that when an AUSA “is personally aware of
substantial evidence that directly negates the guilt of a subject of the investigation, the
prosecutor must present or otherwise disclose such evidence to the grand jury before seeking an
indictment against such a person.” U.S.A.M. § 9-11.233 (2008). The Manual also states that an
indictment should not be dismissed for a violation of this policy, but appellate courts may refer
prosecutors to the DOJ Office of Professional Responsibility for review if they violate the
policy. Id.
Since enactment of § 530B, a district court has held that any state ethical standards
requiring the presentation of exculpatory evidence would not “override the law governing
11
The case had already undergone a civil investigation, a qui tam action, an corporate
counsel had already initiated settlement discussions with the government. Talao, 222 F.3d at
1139.
082
presentation of [exculpatory] evidence at grand jury proceedings.” United States v. Syling, 553
F.Supp.2d 1187, 1192 (D.Haw. 2008). The district court’s opinion did not address any
prosecutorial obligations created by the United States Attorneys Manual.
4. Miscellaneous Prosecutorial Misconduct Within the Grand Jury
If it is true that an experienced prosecutor can get a grand jury to indict a ham sandwich,
then why would an AUSA cut corners to get an indictment? While unethical behavior before a
grand jury seems particularly unnecessary, it nonetheless occurs. A good summary of prohibited
acts can be found in United States v. Samango, 607 F.2d 877 (9th Cir. 1979).
In Samango, an indictment was dismissed by a federal district judge in Hawaii. Id. at

12
878. Samango was a witness called before the grand jury relating to a cocaine importation case
from Tahiti. Id. The AUSA informed the grand jury of his dissatisfaction with Samango’s
performance under a non-pros agreement, chided the witness when he asked to see counsel,
insinuated that the witness was lying and threatened to charge him as a defendant. Id. at 879.
The AUSA later sought a “sanitized” indictment by dumping 1,000 pages of transcript on the
grand jury, and telling them that he had a deadline for their consideration eight days later. Id.
The Ninth Circuit conceded that an attack against an indictment based on incompetent or
inadequate evidence was not possible. Id. at 880-81 & n.6. The Court observed, however, that
dismissal of an indictment can be appropriate “to protect the integrity of the judicial process . . .
particularly the functions of the grand jury, from unfair or improper prosecutorial conduct.” Id.
at 877 (internal citations and quotations omitted).13 This was such a case; “Although deliberate
introduction of perjured testimony is perhaps the most flagrant example of misconduct, other
prosecutorial behavior, even if unintentional, can also cause improper influence and usurpation
of the grand jury’s role.” Id. at 882.
Other prosecutorial misconduct may be grounds to dismiss the indictment. An AUSA

may not ask questions of a grand jury witness solely to discredit the witness. United States v.
DiGrazia, 213 F. Supp. 232, 234 (N.D. Ill. 1963).
While this may seem self-evident, the government may not rely on perjured testimony to
secure an indictment before the grand jury. United States v. Useni, 516 F.3d 634, 656 (7th Cir.
2008); United States v. Basurto, 497 F.2d 781, 785-86 (9th Cir. 1974) (“We hold that the Due
Process Clause of the Fifth Amendment is violated when a defendant has to stand trial on an
indictment which the government knows is based partially on perjured testimony, when the
perjured testimony is material, and when jeopardy has not attached. Whenever the prosecutor
12
Interestingly, the government did not make an appearance in the appeal.
13
One leading case authorizing a dismissal of an indictment for prosecutorial misconduct
is Bank of Nova Scotia v. United States, 487 U.S. 250, 256 (1988) (discussing harmless error
standard for dismissal of an indictment, and contrasting dismissal for errors deemed
fundamental).
083
learns of any perjury committed before the grand jury, he is under a duty to immediately inform
the court and opposing counsel – and, if the perjury may be material, also the grand jury – in
order that appropriate action may be taken.”).
Often it is the cumulative impact of grand jury misconduct that will cost the government
an indictment. In United States v. Hogan, 712 F.2d 757 (2d Cir. 1983), the Court upheld
dismissal of an indictment when the AUSA portrayed the defendant as a “hoodlum” in front of
the grand jury, relied too heavily on hearsay evidence,14 and presented false DEA testimony. Id.
at 761 (“In summary, the incidents related are flagrant and unconscionable. Taking advantage of
his special position of trust, the AUSA impaired the grand jury’s integrity as an independent
body.”).
Another critical rule is the donut ban: an AUSA shouldn’t “bond” with grand jurors by
bringing them donuts at the beginning of their deliberations. United States v. Breslin, 916 F.
Supp. 438, 442 (E.D. Pa. 1996). It is also improper to rush the grand jury’s deliberations by
suggesting that the assigned time was short, to make improper characterizations of the evidence,
to suggest that live witness testimony was unavailable, or to warn that the statute of limitations
was about to run on the charges. Id. at 442.
While the DiGrazia case is a useful laundry list of prosecutorial misconduct before the
grand jury, the opinion is depressingly candid about a defendant’s chances to prevail on such a
claim. “It is rare that defendants have sufficient information from Jencks material to find a basis
for a motion to dismiss. It is unusual that the trial judge would be required to review sufficient
material presented to the grand jury to develop a concern for the cumulative unfairness of the
grand jury proceedings.” Id. at 446.
B. Brady, Due Process, and State Ethical Rules on Discovery
Even before state ethical obligations were extended to federal prosecutors, some federal
courts did not hesitate to impose sanctions for prosecutorial misconduct relating to Brady
violations. One inspiring example is found in United States v. Ramming, 915 F. Supp. 854 (S.D.
Texas 1996). In that case, the district court carefully chronicled the various Brady and Giglio
violations of the federal government in a banking prosecution. Id. at 868. The court concluded,
“the government’s contentions of equal access, neutral evidence, that the defendants were aware
of the information possessed by the Grand Jury, that the testimony was merely impeachment,
and that they acted in good faith, is incredible. Only a person blinded by ambition or ignorance
of the law and ethics would have proceeded down this dangerous path.” Id. (emphasis added).
The defendant’s motion to dismiss because of prosecutorial misconduct was granted. Id.
14
Note that there is no per se ban on hearsay evidence before the grand jury. “Although
there is no prohibition on the use of hearsay evidence before a grand jury, our decision in United
States v. Estepa, 471 F.2d 1132 (2d Cir. 1972), indicates that extensive reliance on hearsay
testimony is disfavored. More particularly, the government prosecutor, in presenting hearsay
evidence to the grand jury, must not deceive the jurors as to the quality of the testimony they
hear.” Hogan, 712 F.2d at 761.
084
To date, few federal courts have equated discovery violations with ethical misconduct
requiring bar referral. As stated supra, filing a complaint with the state bar authorities seems to
be considered a last resort by most federal courts15 even though such a sanction has been
approved of and, in the appropriate case, encouraged by the circuit courts. See United States v.
Wilson, 149 F.3d 1298, 1304 (11th Cir. 1998) (“[W]e want to make clear that improper remarks
and conduct in the future, especially if persistent, ought to result in direct sanctions against an
offending prosecutor individually.”(emphasis in original)); United States v. Modica, 663 F.2d
1173, 1185 (2d Cir. 1981) (“We suspect that the message of a single 30-day suspension from
practice would be far clearer that the disapproving remarks in a score of appellate opinions.”).16
Federal constitutional requirements for disclosure of exculpatory and witness-

impeachment evidence are well-established. The United States Attorneys Manual disclosure
policy exceeds constitutional obligations although the government notes that “the expanded
disclosure policy, however, does not create a general right of discovery in criminal cases. Nor
does it provide defendants with any additional rights or remedies.” USAM 9-5.001 (2010).
Those state ethical rules modeled after the ABA’s Model Rule of Professional Conduct 3.8
impose a still higher duty of discovery than that required by constitutional due process or the
United States Attorneys Manual. Query whether § 530B imposes a higher discovery obligation
on federal prosecutors, by virtue of state ethical rules, and whether that is enforceable?
The American Bar Association has promulgated a model ethical rule relating to the
production of discovery by the prosecutor:
Model Rule of Professional Conduct 3.8
15
See Gibeaut, John, The Roach Motel, ABA JOURNAL, July 2009 (“Judges seldom
discipline lawyers who practice before them for professional misconduct—though other actions,
such as Rule 11 sanctions, sometimes attempt to curb the same behavior and may go
unrecognized as punishment dealt to individuals”), http://www.abajournal.com/magazine/
article/the_roach_motel (last visited 4/13/10); United States v. Shaygan, 661 F.Supp.2d 1289,
1325 (S.D. Fla. 2009) (judge reserved the right “to impose any further sanctions and/or
disciplinary measures as may be necessary against [the federal prosecutors] after reviewing the
results of the Justice Department’s investigation.”); United States v. Jones, No. CR 07-10289-
MLW, 2010 WL 565478 (D.Mass. 2010) (court determined that imposition of sanctions against
AUSA or government for failure to adequately train AUSA based on failure to disclose plainly
material exculpatory evidence were neither necessary nor appropriate where, since violation
disclosure, AUSA, US Attorney’s Office and DOJ officials took actions such as participating in
discovery training programs, which obviated need for sanctions).
16
It appears that state courts are also reluctant to report prosecutorial misconduct to state
bar authorities. In California for instance, it is rare that prosecutorial misconduct is referred to
the California State Bar although required under California law. See “Crossing the Line:
Responding to Prosecutorial Misconduct,” at http://www.abanet.org/litigation/prog_materials
/2008_sectionannual/016.pdf (last visited 4/9/10).
085
The prosecutor in a criminal case shall:
....
(d) make timely disclosure to the defense of all evidence or information known to
the prosecutor that tends to negate the guilt of the accused or mitigates the
offense, and, in connection with sentencing, disclose to the defense and to the
tribunal all unprivileged mitigating information known to the prosecutor, except
when the prosecutor is relieved of this responsibility by a protective order of the
tribunal;
Appendix B, Model Rule of Professional Conduct 3.8(d).
This model rule is patterned after ABA Standard 3-3.11, Prosecution/Defense Function:
Disclosure of Evidence by the Prosecutor
(a) A prosecutor should not intentionally fail to make timely disclosure to the defense, at
the earliest feasible opportunity, of the existence of all evidence or information which
tends to negate the guilt of the accused or mitigate the offense charged or which would
tend to reduce the punishment of the accused.
ABA Standard 3-3.11 (emphases added).
The ABA has recently issued an 8-page formal opinion regarding the prosecutorial
ethical duty to disclose evidence and information favorable to the defense which clearly exceeds
constitutional discovery obligations. See Appendix D, Formal Opinion 09-454 (July 8, 2009).
Key excerpts follow:
Rule 3.8(d) is more demanding that the constitutional case law, in that it requires
the disclosure of evidence or information favorable to the defense without regard
to the anticipated impact of the evidence or information on a trial’s outcome. The
rule thereby requires prosecutors to steer clear of the constitutional line, erring on
the side of caution.
Id. at 4.
Further, this ethical duty of disclosure is not limited to admissible ‘evidence,’

such as physical and documentary evidence, and transcripts of favorable
testimony; it also requires disclosure of favorable “information.” Though possibly
inadmissible itself, favorable information may lead a defendant’s lawyer to
admissible testimony or other evidence or assist him in other ways, such as in
plea negotiations. In determining whether evidence and information will tend to
negate the guilt of the accused, the prosecutor must consider not only defenses to
the charges that the defendant or defense counsel has expressed an intention to
raise but also any other legally cognizable defenses. Nothing in the rule suggests a
086
de minimis exception to the prosecutor’s disclosure duty where, for example, the
prosecutor believes that the information has only a minimal tendency to negate
the defendant’s guilt, or that the favorable evidence is highly unreliable.
Id. at 5.
The Supreme Court has observed that federal due process requirements provide for less-
complete discovery than the ABA standards. See Kyles v. Whitley, 514 U.S. 419, 437 (1995).
Yet, the Court has also noted that, nonetheless, a prosecutor may have an obligation under
applicable ethical or statutory rules to greater disclosure. Cone v. Bell, __ U.S. __, 129 S.Ct.
1769, 1783 n.15 (2009) (“As we have often observed, the prudent will err on the side of
transparency, resolving doubtful questions in favor of disclosure.”).
There are two primary differences between federal due process requirements and the
ABA model ethical rules. The first relates to scope of disclosure. As noted in Kyles, the ABA
model rule requires disclosure of any evidence tending to exculpate or mitigate. Id. (emphasis
added). Federal due process, by contrast, is primarily a standard forged out of appellate review;
it prohibits “the suppression by the prosecution of evidence favorable to the accused upon
request, [which] violates due process where the evidence is material either to guilt or to
punishment, irrespective of the good faith or the bad faith of the prosecution.” Brady v.
Maryland, 373 U.S. 83, 87 (1963).
The second distinction relates to the timing of disclosure. When the model rule is read in
conjunction with the ABA standard, the prosecutor is required to disclose discovery “at the
earliest feasible opportunity.” By contrast, Brady law and timing focuses on prejudice to the
defense viewed in the hindsight of an appeal – if there was no prejudice to the defense by failing
to disclose Brady material before trial, no violation lies. See, e.g., United States v. Knight, 867
F.2d 1285, 1289 (11th Cir. 1989) (“Appellants received the information during the trial and have
failed to demonstrate that the disclosure came so late that it could not be effectively used; and
thus they cannot show prejudice.”) Of even greater concern, federal due process does not require
any disclosure of impeachment information before a defendant pleads guilty – so this Giglio
information may never come to the attention of the defense.17
17
Federal courts have long held that the government has a duty under Brady v.
Maryland, 373 U.S. 83 (1963), and its progeny to disclose favorable material evidence to the
defense in time for the material to be of value to the defendant. See, e.g., United States v.
Gordon, 844 F.2d 1397, 1403 (9th Cir. 1988). This duty to disclose includes impeachment
evidence (sometimes known as “Giglio” material) as well as “actual innocence” evidence. See,
e.g., United States v. Bagley, 473 U.S. 667, 676 (1985). The prosecutor has a duty to obtain this
information from state as well as federal agents who have worked on the case. See Kyles v.
Whitley, 514 U.S. 419, 437-38 (1995).
The Supreme Court has held that impeachment (Giglio) material need not be disclosed to
the defense before a plea of guilt. United States v. Ruiz, 536 U.S. 622, 629 (2002). The Court
reasoned that a defendant can constitutionally “misjudge” other components of his or her case
087
The tension between the federal due process discovery standards and the ABA model rule
is more than just an academic debate; many states have adopted the ABA model rule or an
analogous provision relating to discovery.18 Consider another Colorado case as an illustration of
the tension between state ethical rules and federal discovery requirements.
In People v. Mucklow, 35 P.3d 527 (Co. S. Ct. Office Discipline 2000), a district attorney
twice failed to disclose exculpatory statements to the defense before preliminary hearings. Id. at
530-31. The Discipline Office of the Supreme Court emphasized that Colorado had adopted a
version of ABA model rule 3.8, and that this rule meant “The prosecutor is required to provide
exculpatory information and materials to the defense as soon as it is practicable or feasible to do
so.” Id. at 535. The opinion emphasizes the difference between due process discovery
requirements and (the more rigorous) ethical discovery obligations created by the state ethical
rule. Id. at 535. The D.A. who ignored that distinction did so at her peril; she was publically
censured. Id. at 540.
For the federal practitioner in Colorado – or any state that has adopted a version of ABA
model rule 3.8 – the Mucklow case is intriguing. If Congressman McDade’s § 530B extends
state ethical rules to federal prosecutors, then the Colorado ethical rule requiring early discovery
should apply to an AUSA as well.
C. Prosecutorial Misconduct During Trial
1. Misconduct During Jury Selection
Prosecutorial misconduct cases make for remarkable reading. One such case is Williams
v. Netherland, 181 F.Supp.2d 604 (E.D. Va. 2002). In Williams, petitioner sought relief from a
before a plea; the quality of the State’s case, the likely penalties, a change in law regarding
punishment, the admissibility of a confession, and potential defenses. There accordingly was no
constitutional problem with a plea if the defendant misjudged “the grounds for impeachment of
potential witnesses as a possible future trial.” Id. at 2455.
18
States adopting a substantial equivalent of ABA Model Rule 3.8(d) include Colorado,
Idaho, Maryland, and Pennsylvania. See, e.g., People v. Mucklow, 35 P.3d 527 (Co. S. Ct.
Office Discipline 2000) (discussing Colo. RPC 3.8d, based on ABA Model Rule 3.8); Id. R.
Prof. Conduct 3.8(d) (incorporating subsection (d) of ABA model rule relating to discovery); Md
Rule of Prof. Conduct 3.8 (same); Pa Rule. Prof. Conduct 3.8 (same). Other states have adopted
less-specific ethical rules regarding a prosecutor’s disclosure obligations. California is in the
process of adopting a rule based in large part on ABA Model Rule 3.8(d). See, e.g.,
http://calbar.ca.gov/calbar/pdfs/
public-comment/2009/Revision-Rules-Professional-Conduct-11-Rules_11-13-09.pdf (comparing
and contrasting other states’ adoption and California’s proposed changes) (last visited 4/9/10).
088
capital conviction when i) a juror was the ex-wife of a government witness; ii) the prosecutor
was this juror’s former divorce attorney (and who therefore obviously knew about the
relationship, and iii) neither the juror nor the prosecutor bothered to reveal these relationships
during voir dire. Id. at 609-12. The court found that the prosecutor acted improperly and
granted the writ. Id.
Less favorable is the Ninth Circuit’s affirmance in United States v. Steele, 298 F.3d 906
(9th Cir. 2002). In Steele, the AUSA questioned a prospective juror on voir dire who had been
employed as a public defender. Id. at 911-12. She asked, “In the course of trying [felony
robbery cases], did you ever make a decision that your client was guilty and you’ve got to do
whatever you have got to do because that’s your job?” Id. at 912. The juror answered,
truthfully, “I guess so, yeah. You know, it gets – the facts might show one way or the other, and
you have to pursue the case if the client wants to or not, it’s their decision.” Id.
Defense counsel – sitting next to a client heading into a federal bank robbery trial –
understandably objected to a question about defending guilty defendants at trial. Id. The Ninth
Circuit, however, refused to find misconduct. “The prosecutor’s questions in the present case
may not have been the best way to elicit signs of bias, but the circumstances do not support the
conclusion that there was prosecutorial misconduct.” Id.
2. Improper Conduct During Opening Statements
In her opening statement, an AUSA states that the armed robbery case before the jury has
“rocked the sense of security of an entire Maine community,” a community that had been
“relatively free from random acts of violence.” United States v. Mooney, 315 F.3d 54, 58-59 (1st
Cir. 2002). She continues on to comment that the defendant chose not to speak to the police, and
encouraged the jury to compare that silence with the testimony of his cooperating- co-
defendants. Id. Prosecutorial misconduct?
The government conceded as much in Mooney, choosing not to defend the prosecutor’s
opening remarks. Id. at 59. Instead, while finding misconduct the First Circuit focused
primarily on the remedy (which it ultimately denied).
In Mooney, the First Circuit acknowledged its “dismay that any prosecutor in this circuit
could apprise a jury in an opening statement that a defendant had chosen not to talk to the police.
It is difficult to imagine a more fundamental error.” Id. at 61 & n.1. Nonetheless, in light of the
strength of the evidence and immediate curative instructions, the First Circuit upheld the
conviction. Id.
One particularly interesting aspect of the Mooney decision is the Court’s analysis of the
timing of the misconduct. The Court observed “The context of the prosecutor’s comments also
weighs against a finding that they likely affected the outcome of the trial. The comments
occurred during opening arguments, not during summation where the last words the jury hears
have significant potential to cause prejudice.” Id. at 60. Prosecutorial misconduct during
opening statements thus may be more difficult to remedy on appeal than improper statements
during closing arguments.
089
3. Ethical Problems with Government Witnesses and Trial Evidence
Government witnesses and evidence at trial present a grab-bag of ethical problems. One
straightforward prohibition precludes eliciting a witness’ opinion of another witness’ testimony.
United States v. Geston, 299 F.3d 1130 (9th Cir. 2002), nicely summarizes the due process
concerns behind this rule. Id. at 1136 (collecting cases). In Geston, the Ninth concluded that the
prosecutor’s improper questioning “seriously affected the fairness, integrity, or public reputation
of judicial proceedings, or [] failing to reverse [the] conviction would result in a miscarriage of
justice.” Id. (internal quotation and citation omitted). “In a case where witness credibility was
paramount, it was plain error for the court to allow the prosecutor to persist in asking witnesses
to make improper comments upon the testimony of other witnesses.” Id. at 1137.
Not surprisingly, it is also improper for a prosecutor to intentionally elicit testimony

precluded by a court’s in limine ruling. See Thomas v. Hubbard, 273 F.3d 1164, 1175-76 (9th
Cir. 2001), as amend. Jan. 22, 2002 (granting petition for writ of habeas from murder conviction
when, among other things, the prosecutor intentionally ignored a court ruling prohibiting
testimony about a defendant’s previous use of a gun).
It is also unsurprising that it is prosecutorial misconduct for the government to sponsor

perjured testimony, to permit its witnesses to commit perjury, or to fail to reveal a witness’ lies
to the defense. What is surprising is the vehemence of courts when confronted with this conduct.
Commonwealth v. Bowie, 243 F.3d 1109 (9th Cir. 2001), as amend. Mar. 23, 2001 is a
remarkable example of a court’s intolerance for such conduct. In Bowie, the defendant was
implicated in a particularly brutal murder in the Northern Mariana Islands. Id. at 1111. Much of
the government’s case involved cooperating co-defendants, one of whom was caught early in the
case, in a jail cell, while trying to discard an incriminating letter handwritten on yellow paper.
Id. at 1112-13. That letter – by an unknown author – suggested that the author i) was actually
guilty of the murder, ii) was conspiring to frame the defendant, iii) had lied during cooperation
before, and iv) had lied to his lawyer about the murder. Id. The letter may have come from
another cooperating witness.
Despite this dramatic evidence, the prosecutor did not investigate the letter, did not
submit it for handwriting analysis, and never asked any of the cooperating witnesses about it. Id.
at 1114.
The Ninth Circuit (in an opinion written by former federal prosecutor Trott), was – to put
it mildly – livid in light of the “studied decision by the prosecution not to rock the boat, but
instead to press forward with testimony that was possibly false on the apparent premise that all
these accomplices were actually responsible for [the victim’s] murder.” Id. at 1118. The Court
explained that the prosecutor’s duty was not to merely disclose the letter to the defense, but to
actively investigate the many (potentially exculpatory) ramifications of the evidence. Id. at
1117-18. “A prosecutor’s responsibility and duty to correct what he knows to be false and elicit
the truth . . . requires a prosecutor to act when put on notice of the real possibility of false
testimony. This duty is not discharged by attempting to finesse the problem by pressing ahead
without a diligent and a good faith attempt to resolve it. A prosecutor cannot avoid this
090
obligation by refusing to search for the truth and remaining willfully ignorant of the facts.” Id. at
1118.
The Court did not particularly care what the defendant actually did with this letter during
trial. “[The defendant] has certain constitutional rights that he could waive or forfeit, but he
could not waive the freestanding ethical and constitutional obligation of the prosecutor as a
representative of the government to protect the integrity of the court and the criminal justice
system . . . .” Id. at 1122.
Bowie is a useful place to start when researching prosecutorial misconduct regarding

perjury.19 First, the tone of the case is welcome righteous indignation – in contrast to so many
cases that seem blandly resigned to prosecutorial misconduct. The case also includes a useful
collection of authority regarding prosecutorial misconduct in the presentation in evidence.
Finally, Bowie employs a thoughtful dual analysis – using both due process and prosecutorial
misconduct authority – in arriving at its ultimate reversal. See id. at 1115-17.
4. Improper Closing Arguments
One of the lead cases on prosecutorial misconduct during closing arguments is the source
for the wonderful quote used at the beginning of this outline - Berger v. United States, 295 U.S.
78 (1935). In Berger, the prosecuting attorney misstated evidence during cross examination, an
argument that was “undignified and intemperate, containing improper insinuations and assertions
calculated to mislead the jury.” Id. at 86. The Court found pronounced and persistent
misconduct, a case against the defendant that was not strong, and accordingly reversed and
remanded for a new trial. Id. at 89.
What is interesting about the Berger opinion is the lack of analysis as to the Court’s
power to reverse in light of prosecutorial misconduct. The Court presumably acted under its
supervisory power – a power that it handily distinguished fifty-one years later when presented
with a capital habeas alleging improper closing statements. See Darden v. Wainwright, 477 U.S.
168 (1986). In Darden, the defendant had been convicted of an admittedly horrific murder and
sexual assault. Id. at 172-74. In the closing argument, the prosecutor asserted that the only way
to be sure that the defendant would not return to the public was the death penalty. Id. at 181 &
n.9. The prosecutor argued that the defendant “shouldn’t be out of his cell unless he has a leash
on him and a prison guard at the other end of that leash.” Id. at 181 & n.12. The prosecutor
wished that the homicide victim “had had a shotgun in his hand when he walked in the back door
and blown [the defendant’s] face off. I wish that I could see him sitting here with no face, blown
19
Other useful cases on perjured testimony include United States v. Valentine, 820 F.2d
565 (2d Cir. 1987) (reversing conviction when AUSA mischaracterized grand jury testimony
during trial), and United States v. LaPage, 231 F.3d 488 (9th Cir. 2000) (reversing conviction
when AUSA tolerated perjury from central government witness).
091
away by a shotgun.” Id.20
The Court found that the comments did not deprive the defendant of a fair trial, setting a
test that still haunts federal review: “The prosecutor’s argument did not manipulate or misstate
the evidence, nor did it implicate other specific rights of the accused such as the right to counsel
or the right to remain silent.” Id. at 181-82.
A persuasive dissent in Berger quotes a remarkably candid passage on the futility of

condemnations without remedies:
This court has several times used vigorous language in denouncing government counsel
for such conduct as that of the [prosecutor] here. But, each time, it has said that,
nevertheless, it would not reverse. Such an attitude of helpless piety is, I think,
undesirable. It means actual condonation of counsel's alleged offense, coupled with
verbal disapprobation. If we continue to do nothing practical to prevent such conduct, we
should cease to disapprove it. For otherwise it will be as if we declared in effect,
'Government attorneys, without fear of reversal, may say just about what they please in
addressing juries, for our rules on the subject are pretend-rules. If prosecutors win
verdicts as a result of "disapproved" remarks, we will not deprive them of their victories;
we will merely go through the form of expressing displeasure. The deprecatory words we
use in our opinions on such occasions are purely ceremonial.' Government counsel,
employing such tactics, are the kind who, eager to win victories, will gladly pay the small
price of a ritualistic verbal spanking. The practice of this court – recalling the bitter tear
shed by the Walrus as he ate the oysters – breeds a deplorably cynical attitude towards
the judiciary. I believe this Court must do more than wring its hands when a State uses
improper legal standards to select juries in capital cases and permits prosecutors to
pervert the adversary process. I therefore dissent.
Id. at 206 (Blackmun, J., Brennan, J., Marshall, J., Stevens, J., dissenting) (internal quotations
and citations omitted).
Recently, the Ninth Circuit signaled an end to the wringing of the hands. In United
States v. Reyes, 577 F.3d 1069, 1076-79 (9th Cir. 2009), the court reversed and remanded for a
new trial based on the prosecutor’s remarks in closing argument. The Ninth Circuit found that
the government had asserted material facts to the jury that it knew were false or had strong
reason to doubt, based on contradictory evidence that was not presented to the jury. Id. The
Ninth Circuit sternly warned the DOJ that, “[w]e do not lightly tolerate” such conduct, and that
were was “no reason to tolerate such misconduct here.” Id. at 1078.
Generally, however, courts routinely condemn prosecutor’s conduct, but refuse to grant
20
The district court has observed, “Anyone attempting a text-book illustration of a
violation of the Code of Professional Responsibility . . . could not possibly improve upon
[prosecutor White’s final statement].” Id. at 189 & n.2 (Blackmun, J., Brennan, J., Marshall, J.,
Stevens, J., dissenting).
092
any relief to the defense. In 1970, for example, the First Circuit resignedly repeated warnings it
had made many times before:
We will recapitulate, we hope for the last time, in the light of the number of occasions it
has been necessary to do so, the basic ground rules. Essentially, the prosecutor is to
argue the case. He may discuss the evidence, the warrantable inferences, the witnesses,
and their credibility. He may talk about the duties of the jury, the importance of the case,
and anything else that is relevant. He is not to interject his personal beliefs. The
prosecutor is neither a witness, a mentor, nor a thirteenth juror . . . . He must not appeal
to the passion or prejudice of the jury directly, or by the introduction of irrelevant matter,
indirectly.
United States v. Cotter, 425 F.2d 450, 452 (1st Cir. 1970). In Cotter, this meant that it was
improper for a prosecutor to argue that a defendant’s who failed to pay his taxes was
jeopardizing future moon landings – the first landing was taking place during the trial. Id.
Absent a timely objection, however, the Court declined to reverse. Id.
Forced to deal with repeated allegations of prosecutorial misconduct during closing

arguments, federal appellate courts gradually developed stringent hurdles to overcome before a
defendant would be entitled to any relief. The Second Circuit, for example, developed a three-
part test to determine whether a prosecutor’s statements during closing amounted to misconduct:
The district court correctly identified the three-pronged analysis employed by this Court
to determine whether the statements or actions of a prosecutor amount to misconduct.
That analysis focuses on: the severity of the misconduct, the curative measures taken, and
the certainty of conviction absent the misconduct.
United States v. Burns, 104 F.3d 529, 537 (2d Cir. 1997). In Burns, a prosecutor clapped
(sarcastically) after defense counsel finished their closing in tears. Id. & n.3. The government
conceded on appeal that this was “inappropriate,” but the court refused to reverse the denial of a
new trial motion. Id.
At times, a court’s tolerance of misconduct during closing argument is breathtaking. For

example, in a habeas case arising from a murder conviction, the Ninth Circuit was confronted
with a prosecutor who had actually taken the witness stand during closing argument, “testified”
in the voice of the murdered, gay, victim, and who during this soliloquy characterized the victim
as a “peaceful, gentle man” who did “nothing to deserve his dismal fate.” Drayden v. White, 232
F.3d 704, 712-13 (9th Cir. 2000). While the Ninth Circuit agreed that the prosecutor had
committed misconduct, it refused to hold that this misconduct had violated petitioner’s due
process rights. Id.
Faced with what Justice Blackmun characterized as an “attitude of helpless piety” from
most federal courts reviewing allegations of prosecutorial misconduct, § 530B may provide some
support. There are no shortage of state and local ethical rules directed towards prosecutorial
misconduct in closing arguments. An ABA Model Rule of Professional Conduct, for example,
prohibits an attorney from stating a personal opinion as to the credibility of a witness:
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RULE 3.4 FAIRNESS TO OPPOSING PARTY AND COUNSEL
A lawyer shall not:
. . . .
(e) in trial, allude to any matter that the lawyer does not reasonably believe is relevant or
that will not be supported by admissible evidence, assert personal knowledge of facts in
issue except when testifying as a witness, or state a personal opinion as to the justness of
a cause, the credibility of a witness, the culpability of a civil litigant or the guilt or
innocence of an accused; or
Appendix E, ABA Model Rule of Professional Conduct 3.4 (2002) (emphasis added).
In states that have adopted this model rule21 – or that have analogous limitations on
closing arguments – such behavior during a federal closing should earn the prosecutor a referral
to the state bar disciplinary committee in this post-§ 530B world. Even if the misconduct is not
sufficiently prejudicial to entitle a defendant to relief, the specter of a public censure by the state
bar should help to put some teeth into the judicial “hand wringing” that Justice Blackmun
warned against in Berger.
Notably, even when courts do not directly censure AUSAs based on local ethical rules,
the moral weight of these rules is gradually making its way into federal case law. For example,
the Sixth Circuit reversed and remanded for a new trial a federal bank robbery case where the
prosecutor misstated central eyewitness testimony during closing. See United States v. Carter,
236 F.3d 777, 793 (6th Cir. 2001). In its analysis of the threshold question22 of whether the
21
A non-exhaustive list of states that have adopted Model Rule 3-4 includes
Connecticut, Kansas, Louisiana, Maryland, Montana, New Hampshire, North Carolina, Utah,
West Virginia. See, e.g., State v. Floyd, 523 A.2d 1323 (Conn. App. 1987) (applying Rule of
Professional Conduct 3.4 to alleged ethical violation); State v. Pabst, 996 P.2d 321, 326 (Kan.
S.Ct. 2000)(same); Merritt v. Karcioglu, 668 So.2d 469, 475-76 (La. App. 4th Cir. 1996) (same);
Attorney Grievance Com'n v. Alison, 709 A.2d 1212, 1215 (Md. Ct. App. 1998) (same); State v.
Stewart, 833 P.2d 1085, 1089-90 (Mont. S. Ct. 1992) (same); State v. Jones, 558 S.E.2d 97, 127-
28 (N.C. S. Ct. 2002); State v. Bujnowski, 532 A.2d 1385, 1387 (N.H. S. Ct. 1987) (same); State
v. Dibello, 780 P.2d 1221 (Utah S. Ct. 1989) (same); State v. Stephens, 525 S.E.2d 301, 424 (W.
Va. S. Ct. 1999)
22
The Court in Carter articulated the Sixth Circuit’s two-part test to determine whether
prosecutorial misconduct has taken place:
The Sixth Circuit has adopted a two-step approach for determining when
prosecutorial misconduct warrants a new trial. See United States v. Carroll, 26 F.3d
1380, 1385-87 (6th Cir.1994). Under this approach, a court must first consider whether
the prosecutor's conduct and remarks were improper. Id. at 1387; see also Boyle v.
Million, 201 F.3d 711, 717 (6th Cir.2000). If the remarks were improper, the court must
094
AUSA’s closing was improper, the Sixth Circuit quoted with favor the ABA Standard stating
that “the prosecutor should not intentionally misstate the evidence or mislead the jury as to the
inferences it may draw.” Id. at 785 (quoting ABA Standards for Criminal Justice Prosecution
Function and Defense Function 3-5.8(a) (3d ed. 1993)).
Our personal experience in this field also reveals that the specter of ethical sanction is a
powerful weapon in combating unethical behavior. A prime example is United States v.
Blueford, 312 F.3d 962 (9th Cir. 2002), as amend. & further amend., Nov. 22, 2002. Northern
District Assistant Federal Public Defender Joyce Leavitt ably litigated this felon in possession
case. The defense – who had provided notice of an alibi defense – was presented with a huge
stack of the client’s taped conversations from the jail; and was first presented with these tapes in
the midst of trial. Id. at 966. The AUSA suggested that he was going to use these tapes as
impeachment material relating to the testimony of defense alibi witnesses – implying that the
tapes revealed a defendant who was suborning perjury. Id. at 965. During the trial the AUSA
elicited in his cross of defense alibi witnesses that they had spoken much more frequently to the
defendant just before the trial. Id. at 966. In his closing, the AUSA asked the jury to infer that
the defendant and the alibi witness fabricated the alibi defense just before trial. Id. at 967.
In reality, however, when the thirty hours of tapes were reviewed by the defense (after
trial), they revealed the defendant telling an alibi witness, “[A]ll you got to do is tell the truth.”
Id. The district court judge was surprised to learn the tapes did not, in fact, reveal a defendant
who was coaching alibi witnesses. Id.
The Ninth Circuit reversed; “It is decidedly improper for the government to propound
inferences that it knows to be false, or has very strong reason to doubt, particularly when it
refuses to acknowledge the error afterwards to either the trial court or this court and instead
offers far-fetched explanations of its actions.” Id. at 968.
then consider and weigh four factors in determining whether the impropriety was flagrant
and thus warrants reversal. These four factors are as follows: (1) whether the conduct and
remarks of the prosecutor tended to mislead the jury or prejudice the defendant; (2)
whether the conduct or remarks were isolated or extensive; (3) whether the remarks were
deliberately or accidentally made; and (4) whether the evidence against the defendant
was strong. Carroll, 26 F.3d at 1385; see also Boyle, 201 F.3d at 717; United States v.
Collins, 78 F.3d 1021, 1039 (6th Cir.), cert. denied, 519 U.S. 872, 117 S.Ct. 189, 136
L.Ed.2d 127 (1996).
When reviewing challenges to a prosecutor's remarks at trial, we examine the

prosecutor's comments within the context of the trial to determine whether such
comments amounted to prejudicial error. United States v. Young, 470 U.S. 1, 11-12, 105
S.Ct. 1038, 84 L.Ed.2d 1 (1985); Collins, 78 F.3d at 1040. In so doing, we consider
whether, and to what extent, the prosecutor's improper remarks were invited by defense
counsel's argument. Young, 470 U.S. at 12, 105 S.Ct. 1038; Collins, 78 F.3d at 1040.
Carter, 236 F.3d at 783.

095
What is not clear from the opinion is the enormous publicity and controversy that this
case generated in the Northern District of California. The government – and the AUSA himself
– devoted enormous resources to seeking rehearing and (later, successful amendment) of the
opinion alleging prosecutorial misconduct. Notably, the opinion does not clearly specify the
AUSA involved in trial. Id. Nonetheless, the Blueford case and this AUSA’s involvement are
well-known by every federal practitioner and district judge in the Northern District. In short, the
combination of a remedy for the defendant (reversal and new trial), and even an oblique moral
sanction may have some impact.
D. Broken Promises: Breached Pleas at Sentencing
Is a broken plea agreement at sentencing best analyzed using contract law, or when
framed as prosecutorial misconduct? More importantly, does it matter to the client as long as a
remedy is secured?
The lead case on breached plea agreements is Santobello v. New York, 404 U.S. 257
(1971). In that opinion, the Supreme Court reversed and remanded after (the second) prosecutor
in the case refused to make a sentencing recommendation agreed upon before the plea. Id. at
260. Despite the fact that the judge disclaimed any reliance on the D.A.’s recommendation, the
Court found that “when a plea rests in any significant degree on a promise or agreement of the
prosecutor, so that it can be said to be part of the inducement or consideration, such promise
must be fulfilled.” Id. at 262. While the Court did not engage in much analysis of the ethics of a
breached plea, it made no mention of any principles of contract law. Justice Douglas’
concurrence, however, emphasized that outright vacation is often appropriate after a breached
plea promise, in light of “an outraged sense of fairness.” Id. at 266 (Douglas, J., concurring)
(internal quotations and citation omitted).
While deferring to Santobello, federal appellate courts have routinely avoided the ethical
issues by analyzing plea agreement breach under contract law. In United States v. Grimm, 170
F.3d 760 (7th Cir. 1999), for example, the Seventh Circuit employed contract principles when an
AUSA failed to recommend acceptance of responsibility and did not dispute a gun possession, in
violation of the plea agreement. Id. at 764-66. Without engaging in any ethical finger-pointing,
the Court vacated the sentence and remanded for resentencing. Id. at 765.
Ethical overtones in plea-breach cases are becoming more common, however. For
example, in Gunn v. Ignacio, 263 F.3d 965 (9th Cir. 2001), the Ninth Circuit granted a petition
for a writ of habeas corpus when a district attorney breached a plea agreement regarding
concurrent time. Id. at 969. Because the Court granted relief, it did not get to the second issue
raised by the Petitioner – a claim of ineffective assistance of counsel for failing to object to the
prosecutorial misconduct arising from this breach! Id. at 968. Although Gunn did not consider
the issue, Petitioner’s claim is sobering: defense counsel too timid to raise prosecutorial
misconduct challenges may regret their decision when faced with a later I.A.C. claim.
If sufficiently dramatic, a prosecutor’s breach of a plea agreement may even prompt a

Court to enforce promises that were actually unfulfillable! Such was the case in Palermo v.
Warden, Green Haven State Prison, 545 F.2d 286 (2d Cir. 1976). In Palermo, the Petitioner had
096
been promised that state district attorneys would aggressively lobby the parole board for a
reduced sentence, in return for him leading them to $4 million worth of stolen jewelry. Id. at
289-90. The jewels were recovered, sympathetic letters were written by the DA’s to the parole
commission – but at the same time, prosecutors sandbagged the defendant by calling a parole
investigator and analogizing the defendant to another parolee who had received a lenient
sentence and then committed a violent crime. Id. at 291. The state’s case was not helped by
contractions in the prosecutors’ testimony, inconsistencies “too numerous to mention” that
undermined their credibility. Id. at 294.
While contesting the habeas petition, the state argued that the prosecutors never had the
authority to offer a bargain from another jurisdiction – the state parole commission. The Court
was unimpressed. The Second Circuit proclaimed “fundamental fairness and public confidence
in government officials require that prosecutors be held to meticulous standards of both promise
and performance.” Id. at 296. The Court accordingly held, “where a defendant pleads guilty
because he reasonably relies on promises by the prosecutors which are in fact unfulfillable, he
has a right to have those promises fulfilled.” Id. The district court’s unconditional release order
was affirmed. Id.
To answer the question posed at the outset of this section regarding contract law versus
ethical analysis, the scope of remedy may depend on whether a prosecutor’s action in breaching
a plea agreement was “egregious or intentional.” United States v. Brye, 146 F.3d 1207, 1213.
(10th Cir. 1998). In Brye, the Tenth Circuit analyzed a breach where the AUSA promised to
“defer” on a motion for a downward departure, then undermined (albeit subtly) the defendant’s
motion at sentencing. Id. at 1212. While the Court found the breach, it observed that it would
only permit the defendant to withdraw his plea when the breach was “egregious or intentional.”
Id. at 1213. Because the government’s breach was “based on a misunderstanding of the plea
agreement,” the case was only remanded for resentencing. Id. The lesson from Brye is clear –
when faced with a breach, defense counsel should argue contract law but should also emphasize
the ethical violation, to secure better remedies for their client.
III. Normalizing Justice
A. The Proposed Expansion of Rule 16 and DOJ’s Opposition
On April 28, 2009, Judge Emmet Sullivan, following the conclusion of United States v.
Stevens case, wrote the Judicial Conference Advisory Committee and urged its members to
consider an amendment to Rule 16 of the Federal Rules of Criminal Procedure. See Appendix F
(Sullivan, J. Letter, April 28, 2009). Judge Sullivan wrote, “A federal rule of criminal procedure
requiring all exculpatory evidence to be produced to the defense would eliminate the need to rely
on a ‘prudent prosecutor’ deciding to ‘err on the side of transparency,’ . . . and would go a long
way towards furthering ‘the search for the truth in criminal trials’and ensuring that ‘justice shall
be done.’” Id. He noted that it “has now been nearly three years since the United States
Attorneys’ Manual was modified to ‘establish[] guidelines for the exercise of judgment and
discretion by attorneys for the government in determining what information to disclose to a
criminal defendant pursuant to the government’s discovery obligations as set out in Brady v.
Maryland and Giglio v. United States and its obligation to seek justice in every case.’” Id. Judge
097
Sullivan also reiterated the serious Brady violations in the Stevens case.
Rule 16 currently requires “that the government produce, ‘upon a defendant’s request,’
those documents and objects and the results of examinations and tests that are ‘material to
preparing the defense.’” Spivack, Roth and Golden, Troubling the Heavens, 34 CHAMPION 24 at
2. In contrast to the government’s obligations under Brady, the government’s Rule 16 obligation
“to produce items ‘material to preparing the defense’ extends only to items material to ‘the
defendant’s response to the govenrment’s case in chief.’” Id.
In October 2009, Assistant Attorney General for the Criminal Division Lanny Breuer,
addressed the committee and “described steps that the Department had taken in the aftermath of
the Stevens trial, including forming a working group to study discovery in criminal proceedings
and to suggest improvements. He said that while the Department took its obligations seriously,
an Office of Professional Responsibility report of alleged Brady violations over the past nine
years did not reveal evidence of a widespread problem.” See October 13, 2009, Draft Minutes,
Advisory Committee on Criminal Rules, http://www.uscourts.gov/rules/Agenda%20Books
/Criminal/CR2010-04.pdf (last visited 4/9/10).23
He indicated that the DOJ would not object to amending Rule 16 to codify Brady
disclosure requirements but would object to any proposed amendment beyond Brady obligations.
Id. Presumably, the DOJ opposition to an expansion of Rule 16, even if only to the extent to
which the United States Atorneys Manual now provides, is based on a concern that such an
expansion would provide defendants with “an enforceable right to the government’s disclosure
of any and all exculpatory material, not just the information that the government deems to be
‘material.’” See Spivack, Roth and Golden, Troubling the Heavens, 34 CHAMPION 24 at 10.
According to the draft minutes of the October 2009 meeting, “[a] participant suggested
that the training of federal prosecutors should include presentations by members of the defense
bar who could offer their perspective on discovery issues.” Id. There was some discussion of an
“open-file” policy that has been adopted by some U.S. Attorney Offices. “One member thought
that the policy had been successfully used in the Northern District of California. However,
Judge Tallman noted that as an appellate judge, he sees Brady issues arising in many cases from
California, including that district.” Id.
In a later March 2010 meeting, materials distributed to the members included the Ogden
Memoranda outlining the DOJ’s efforts to improve discovery practices by federal prosecutors, a
letter from Judge Mark Wolf also advocating for an amendment to Rule 16 (see Appendix G,
Wolf, J. Letter, June 23, 2009), a proposed draft survey of all federal judges designed by the
23
At an April, 2010 panel session at the D.C. Judicial and Bar Conference, the director
of the Criminal Division’s Policy and Legislation, Jonathan Wroblewski, stated that “DOJ
officials who have reviewed available data conclude there is no widespread misconduct when it
comes to prosecutors turning over favorable material to defense lawyers . . . .”
http://www.mainjustice.com/2010/04/13/doj-defends-against-critics-of-prosecutors-discovery-pr
oduction/ (last visited 4/14/10)
098
Federal Judicial Center regarding discovery practices and judicial experience with Brady and
Giglio violations, and the ABA’s Formal Ethics Opinion 09-454.
Further discussion of the proposed amendment of Rule 16 will be held at the next
meeting of the Advisory Committee on Criminal Rules in April, 2010.
B. For the Defense – Commentators’ Opinions and Recommendations
From Pivack, Stephen R., Troubling the Heavens: Production of Evidence Favorable to
Defendants by the United States, THE CHAMPION, January/February 2010:24
One major remedy for these problems is an amendment to FRCrP 16, in line with
that proposed by the Advisory Committee, that provides defendants an
enforceable right to the government’s disclosure of any and all exculpatory
material, not just the information that the government deems to be “material.”
Such an amendment was endorsed by Judge Sullivan himself in the aftermath of
the Stevens case, and would represent an important step towards safeguarding the
rights of criminal defendants. It would codify the government’s obligation to
provide exculpatory and impeaching information regardless of its perceived
materiality and would grant defendants a right that is enforceable in court and is
not currently recognized by most courts absent a showing of materiality. In
addition, it would help to ensure that federal prosecutors do not make decisions
with respect to what information to provide to defendants based on an inherently
subjective assessment of whether its use at trial would impact the outcome of the
prosecution. Perhaps most importantly, amending FRCrP 16 would insulate
defendants against future changes in Justice Department policy that might de-
emphasize as a goal the full production of all exculpatory and impeaching
information to criminal defendants. For all of those reasons, amending FRCrP 16
is an important and necessary step.
....
Along with the adoption of specific new procedures and the retraining of
prosecutors relative to existing requirements, the Department of Justice also
should make clear that the failure of prosecutors to comply with the Department’s
internal guidelines will result in real and significant consequences.
From the blog of Scott H. Greenfield, Criminal Defense Attorney25:
24
http://www.nacdl.org/public.nsf/01c1e7698280d20385256d0b00789923
/e11dccac91ec12b9852576fc0073bc75?OpenDocument, (footnotes omitted) (last visited
4/12/10).
25
http://blog.simplejustice.us/2009/07/09/brady-violations-not-just-a-rules-issue.aspx
(last visited 4/12/10).
099
The solutions to the Brady problem fall into two categories. Trust the DOJ or
create a new rule that requires courts to trust the DOJ. While the new Rule 16
proposal has certain virtue, foremost of which is that it resolves the long-standing
problem of when the government must disclose Brady, which it now holds to the
very last second if it's to be disclosed at all, rendering the defense incapable of
investigating or making good use of the information. But it still doesn't address
the core issue: The determination of what is Brady is left to the discretion of the
prosecution, and the duty to disclose it at all remains the decision of the prosecutor.
The proposed ‘solutions’ are thus dependent on the answer to this question: Do
you trust the prosecutor?
If we can’t trust the prosecutor, each and every prosecutor in every district
throughout the country, to disclose Brady, to err on the side of disclosure, to
disclose timely, then neither new rules nor procedures that continue to rely on the
discretion of prosecutors will solve the problem. Clearly, former prosecutors and
even judges who've been burned still seem to put their faith in the integrity of the
government. Somehow, I don't find this satisfying, but then nobody engaged in
this discussion seems to think that the defense side of the courtroom should have
any say in the matter.
From Irwin H. Schwartz, Beyond Brady: Using Model Rule 3.8(d) in Federal Court for
Discovery of Exculpatory Information, THE CHAMPION, March, 2010:
In the aftermath of the scandals of 2009, Attorney General Holder and Assistant
Attorney General Breuer spoke about the Department's failures. Breuer said, ‘The
Department of Justice is committed to the very highest ethical standards.’ Yet,
when the Department issued its 2010 guidance on discovery, it made no mention
of prosecutors’ duty under Rule 3.8(d). It listed Rules 16 and 26.2, the Jencks
Act, and Brady as sources ‘generally establish[ing]’ its ‘discovery obligations.’
How can the Department achieve ‘the very highest ethical standards’ when it does
not acknowledge that Rule 3.8(d) establishes a duty of disclosure and a broader
duty than the sources it listed? Worse, the guidance is inconsistent with Rule
3.8(d) on the critical matter of disclosure timing. The ABA Opinion requires
disclosure of exculpatory information ‘as soon as reasonably practicable.’ The
Department’s guidance permits prosecutors to delay production of exculpatory
information.
Although acknowledging that Brady practices vary from office to office and even
within offices, the guidance does not assure uniform practices within the
Department. One way in which uniformity could be accomplished is by moving
Brady discovery to Rule 16. Judge Emmet Sullivan, who tried the Ted Stevens
case, asked the Supreme Court Advisory Committee on Criminal Rules to
consider this idea. The Department opposed the suggestion, as it did in 2006.
Recent cases show its efforts were not sufficient. Today, the Department clings to
a narrow view of its disclosure obligations and continues to oppose rules reform.
100
NACDL led the way to passage of 28 U.S.C. § 530B and passage of the Hyde
Amendment. Recent events show that defense attorneys need to roll up their
sleeves again -- in court and Congress. If the Department of Justice is unwilling
or unable to mandate compliance with Rule 3.8(d), and if it is unwilling or unable
to assure compliance with the rule, then courts or Congress must step in to
mandate compliance. Now.
From Professor Ellen Podgor’s White Collar Crime Prof Blog:
In the wake of recent events that demonstrate discovery violations, DOJ has
issued three new policies. It is wonderful to see that DOJ is beefing up its
discovery practices and taking a hard look at what should happen in the future. It
also sounds like a better management system is being considered. But that said,
looking at the actual guidance memo, here are a few preliminary comments -
After telling prosecutors that they need to familiarize themselves with Brady,
Giglio and other discovery rules and statutes, the paragraph ends with a statement
that this new memo ‘provides prospective guidance only and is not intended to
have the force of law or to create or confer any rights, privileges, or benefits.’
Yes, this is the standard language one finds throughout the DOJ manual. But wait
a minute -- although DOJ guidelines can be guidelines, these mandates are
constitutional, statutory, and rules - they often do have the force of law. This fact
should be emphasized to prosecutors.
The memo states - ‘Prosecutors should never describe the discovery being
provided as ‘open file.” The memo explains the fears of missing something. It
seems odd that the DOJ doesn’t want prosecutors to accept credit when they do
the right thing and provide all discovery. Saying not to call it ‘open,’ for fear of
missing something, implies that this is not a policy that recognizes the value of an
‘open file’ system that can work well and provide efficiency. And taking this one
step further -- if it is not acknowledged as an ‘open discovery’ practice, and
something is missed - will it sound any better to the accused who failed to receive
their discovery material?
The memo gives no real guidance as to when a prosecutor has to turn over Jencks
material, and leaves it to the individual offices to create their individual rules. It is
ironic that DOJ wants sentencing consistency, but doesn’t want discovery
consistency. Should a defendant in Wyoming have different rights to witness
statements than the defendant in New York?
It is good to see memorialization of witness statements is important. But only
turning over ‘material variances in a witness's statements?’ Shouldn’t all
variances be turned over?
It is interesting how the memo provides an extensive review process of discovery
material - will this hold up getting the materials to defense counsel? Also will
defense counsel be given an equal amount of time to review these materials and
101
time to conduct additional investigation that may be warranted as a result of the
materials provided?
And yes, it is important to protect witnesses and national security - but should
DOJ be the one deciding when they think they can withhold evidence? Shouldn’t
that be for neutral parties like the judiciary?
It is good to see DOJ trying to do a better job than past administrations, but what
really needs to be done is setting forth clearer rules and statutes by independent
parties, as opposed to a working group made up of ‘senior prosecutors from
throughout the Department and from United States’ Attorney Offices, law
enforcement representatives, and information technology professionals,’ so that
our system does ‘do justice’ as desired by AG Holder.26
Parting Thoughts
It is the easiest thing in the world for people trained in the adversarial ethic to
think a prosecutor’s job is simply to win . . . . It is not.
United States v. Blueford, 312 F.3d 962, 968 (9th Cir. 2002) as amend. & further amend., Nov.
22, 2002 (internal quotations and citations omitted).
Law enforcement officers have the obligation to convict the guilty and to make
sure they do not convict the innocent. They must be dedicated to making the
criminal trial a procedure for the ascertainment of the true facts surrounding the
commission of the crime. To this extent, our so-called adversary system is not
adversary at all; nor should it be.
United States v. Wade, 388 U.S. 218, 256 (1967) (White, J., concurring and dissenting) (footnote
omitted).
The greatest dangers to liberty lurk in insidious encroachment by men of zeal,

well-meaning but without understanding.
Olmstead v. United States, 277 U.S. 438, 479 (Brandeis, J., dissenting).
[T]he Constitution prescribes a floor below which protections may not fall, rather
than a ceiling beyond which they may not rise. The Model Code of Professional
Responsibility, on the other hand, encompasses the attorney’s duty to ‘maintain
the highest standards of ethical conduct.’ Preamble, Model Code of Professional
26
New DOJ Discovery Policies Fall Short, http://lawprofessors.typepad.com/
whitecollarcrime_blog/2010/01/new-doj-discovery-policies.html (last visited 4/14/10).
102
Responsibility (1981). The Code is designed to safeguard the integrity of the
profession and preserve public confidence in our system of justice.
United States v. Hammad, 858 F.2d 834, 839 (2d Cir. 1988).
103
104
105
106
107
108
109
1
Notice of Appeal, Motion to Vacate and or Set Aside, JCRCP 59, JCRCP 60, Motion for
Reconsideration; Motion for Recusal; Motion For Publication Of Transcript at Public Expense,
Petition for In Forma Pauperis Status
POINTS AND AUTHORITIES
CASE APPEAL STATEMENT
Defendant/Appellant, Zach Coughlin, hereby files this Notice of Appeal, Motion to Vacate and
or Set Aside, JCRCP 59, JCRCP 60, Motion for Reconsideration; Motion for Recusal; Motion For
Publication Of Transcript at Public Expense, Petition for In Forma Pauperis Status.

9

10
ANALYSIS
11
INCORPORATE BY REFERENCE ALL LAW AND ASSERTIONS IN ATTACHED

12
PAPERS AND PLEADINGS AND WRITINGS IN EXHIBIT 1:

13
RULE 59. NEW TRIALS; AMENDMENT OF JUDGMENTS

(a) Grounds. A new trial may be granted to all or any of the parties and on all or part of the issues for any of the
14
following causes or grounds materially affecting the substantial rights of an aggrieved party: (1) Irregularity in the
proceedings of the court, jury, master, or adverse party, or any order of the court, or master, or abuse of discretion by
15 which either party was prevented from having a fair trial; (2) Misconduct of the jury or prevailing party; (3) Accident or
surprise which ordinary prudence could not have guarded against; (4) Newly discovered evidence material for the party
16
making the motion which the party could not, with reasonable diligence, have discovered and produced at the trial; (5)
Manifest disregard by the jury of the instructions of the court; (6) Excessive damages appearing to have been given under
17
the influence of passion or prejudice; or, (7) Error in law occurring at the trial and objected to by the party making the
motion. On a motion for a new trial in an action tried without a jury, the court may open the judgment if one has been
18
entered, take additional testimony, amend findings of fact and conclusions of law or make new findings and conclusions,
and direct the entry of a new judgment.
19
(b) Time for Motion. A motion for a new trial shall be filed no later than 10 days after service of written notice of the
entry of the judgment.
20
(c) Time for Serving Affidavits. When a motion for new trial is based upon affidavits they shall be filed with the motion.
21
The opposing party has 10 days after service within which to file opposing affidavits, which period may be extended for
an additional period not exceeding 20 days either by the court for good cause shown or by the parties by written
22
stipulation. The court may permit reply affidavits.

(d) On Court’s Initiative; Notice; Specifying Grounds. No later than 10 days after entry of judgment the court, on its
23
own, may order a new trial for any reason that would justify granting one on a party’s motion. After giving the parties
notice and an opportunity to be heard, the court may grant a timely motion for a new trial for a reason not stated in the
24
motion. When granting a new trial on its own initiative or for a reason not stated in a motion, the court shall specify the
grounds in its order.
25
(e) Motion to Alter or Amend a Judgment. A motion to alter or amend the judgment shall be filed no later than 10 days
26
after service of written notice of entry of the judgment.

[As amended; effective July 1, 2005.]
27
28
2 Notice of Appeal, Motion to Vacate and or Set Aside, JCRCP 59, JCRCP 60, Motion for
Reconsideration; Motion for Recusal
110
1
RULE 60. RELIEF FROM JUDGMENT OR ORDER

(a) Clerical Mistakes. Clerical mistakes in judgments, orders or other parts of the record and errors therein arising from
2
oversight or omission may be corrected by the court at any time of its own initiative or on the motion of any party and
after such notice, if any, as the court orders. During the pendency of an appeal, such mistakes may be so corrected before
3
the appeal is docketed in the appellate court, and thereafter while the appeal is pending may be so corrected with leave of
the appellate court.
4
(b) Mistakes; Inadvertence; Excusable Neglect; Newly Discovered Evidence; Fraud, Etc. On motion and upon such
terms as are just, the court may relieve a party or party’s legal representative from a final judgment, order, or proceeding
5 for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which
by due diligence could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud (whether
6
heretofore denominated intrinsic or extrinsic), misrepresentation or other misconduct of an adverse party; (4) the
judgment is void; or, (5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is
7
based has been reversed or otherwise vacated, or it is no longer equitable that an injunction should have prospective
application. The motion shall be made within a reasonable time, and for reasons (1), (2), and (3) not more than 6 months
8
after the proceeding was taken or the date that written notice of entry of the judgment or order was served. A motion
under this subdivision (b) does not affect the finality of a judgment or suspend its operation. This rule does not limit the
9
power of a court to entertain an independent action to relieve a party from a judgment, order, or proceeding, or to set
aside a judgment for fraud upon the court. Writs of coram nobis, coram vobis, audita querela, and bills of review and bills
10 in the nature of a bill of review, are abolished, and the procedure for obtaining any relief from a judgment shall be by
motion as prescribed in these rules or by an independent action.
11
(c) Default Judgments: Defendant Not Personally Served. When a default judgment shall have been taken against any
12
party who was not personally served with summons and complaint, either in the State of Nevada or in any other
jurisdiction, and who has not entered a general appearance in the action, the court, after notice to the adverse party, upon
13
motion made within 6 months after the date of service of written notice of entry of such judgment, may vacate such
judgment and allow the party or the party’s legal representatives to answer to the merits of the original action. When,
14
however, a party has been personally served with summons and complaint, either in the State of Nevada or in any other
jurisdiction, the party must make application to be relieved from a default, a judgment, an order, or other proceeding
15 taken against the party, or for permission to file an answer, in accordance with the provisions of subdivision (b) of this
rule.
16
(d) Default Judgments: Modification Nunc Pro Tunc. Whenever a default judgment or decree has been entered, the
party or parties in default therein may at any time thereafter, upon written consent of the party or parties in whose favor
17
judgment or decree has been entered, enter general appearance in the action, and the general appearance so entered shall
have the same force and effect as if entered at the proper time prior to the rendition of the judgment or decree. On such
18
appearance being entered the court may make and enter a modified judgment or decree to the extent only of showing such
general appearance on the part of the party or parties in default, and it shall be entered nunc pro tunc as of the date of the
19
original judgment or decree; provided, however, that nothing herein contained shall prevent the court from modifying
such judgment or decree as stipulated and agreed in writing by the parties to such action, and in accordance with the terms
20 of such written stipulation and agreement.
21
RULE 62. STAY OF PROCEEDINGS TO ENFORCE A JUDGMENT

22
(a) Automatic Stay. Except as stated herein, no execution shall issue upon a judgment nor shall proceedings be taken for
23
its enforcement until the expiration of 10 days after service of written notice of its entry.
(b) Stay on Motion for New Trial or for Judgment. In its discretion and on such conditions for the security of the
24
adverse party as are proper, the court may stay the execution of or any proceedings to enforce a judgment pending the
disposition of a motion for a new trial or to alter or amend a judgment made pursuant to Rule 59, or of a motion for relief
25 from a judgment or order made pursuant to Rule 60, or of a motion for judgment in accordance with a motion for a
judgment as a matter of law made pursuant to Rule 50, or of a motion for amendment to the findings or for additional
26
findings made pursuant to Rule 52(b).

27
(c) Reserved.
(d) Stay Upon Appeal. When an appeal is taken the appellant by giving a supersedeas bond may obtain a stay. The bond
28
may be given at or after the time of filing the notice of appeal. The stay is effective when the supersedeas bond is filed.
111
1
(e) Stay in Favor of the State or Agency Thereof. When an appeal is taken by the State or by any county, city or town
within the State, or an officer or agency thereof and the operation or enforcement of the judgment is stayed, no bond,
2
obligation, or other security shall be required from the appellant.

(f) Reserved.
3
(g) Power of Appellate Court Not Limited. The provisions in this rule do not limit any power of an appellate court or of
4
a judge or justice thereof to stay proceedings during the pendency of an appeal or to suspend, modify, restore, or grant an
injunction during the pendency of an appeal or to make any order appropriate to preserve the status quo or the
5 effectiveness of the judgment subsequently to be entered.
(h) Stay of Judgment as to Multiple Claims or Multiple Parties. When a court has ordered a final judgment under the
6
conditions stated in Rule 54(b), the court may stay enforcement of that judgment until the entering of a subsequent
judgment or judgments and may prescribe such conditions as are necessary to secure the benefit thereof to the party in
7
whose favor the judgment is entered.

8
[As amended; effective July 1, 2005.]
prosecutorial misconduct (such as the D.A. withholding "exculpatory" evidence that could’ve helped your defense)
10
11
judicial errors (such as the judge permitting evidence that should’ve been excluded or vice versa)
12
erroneous application of a law or regulation improper jury instructions

13
14
ineffective assistance of counsel or other malpractice the evidence did not prove your guilt beyond a reasonable doubt
I went to the filing office at the RMC a couple times recently, including today, and sent in another written request seeking
15
an audio tape of the Trial in RMC 11 CR 22176 IC 110627 RSIC but was told by a Clerk that I would need to pay for
the entire Trial to be transcribed, and only then would I be allowed to read it, and that I would not be allowed to access
16
the audio of the hearing? Is this correct? I need to have the audio of the Trial to finish my Rule 59, 60, and Motion for
Reconsideration Motions....I will pay for the audio. I have received many audio cd/dvd's from both Reno Justice Court
17
and Washoe District Court, and it was announced in court that the trial was being audio recorded, as such, I hope you will
afford me a copy. Today, I called the RMC and spoke with Veronica, who sounded very angry with me and dismissive. I
18
was summarily sentenced to 3 days in jail at the end of the trial in this matter, even where I had been denied my Sixth
Amendment Right To Counsel, after a Contempt committed in the court's presence finding was announced, in addition to
19
a guilty verdict in the underlying action. Veronica informed me that she was at the trial and that the RMC had failed to
mail me or otherwise serve me with a copy of the written Order, either for the guilty conviction in the underlying case or
20
the contempt order. I was forced into handcuffs so quickly ater Judge Howard concluded issuing his oral ruling that I was
not even able to save my notes on my computer, it was literally apparently that exigent a situation to handcuff me....Then
21
a few Marshalls place some pieces of paper in front of me and demanded I sign them, and became angry, like Veronica
and like Marshall Monte, I believe, was at the arraingment, when I asked a simple question related to due process,
22
something many at the RMC do not seem all that enamored with. I asked if I could even read the papers they were
demanding I sign right then and there. The curtly and loudly said no, then dragged me away before I could read the
23
papers, much less sign them. Veronica snarled at me that that was all the service of the Order of Contempt and Guilty
Verdict that I would get, but that she might fax it to me, however, no fax has arrived, despite my illustrating the
24
exigencies of receiving the Order in preparing my Relief From Judgment Motions. Veronica continue to curtly refuse to
provide me any copy of any of the previously filed Orders of the Court unless I paid for them, despite my apparently not
25
having been provided a copy of such orders in the first place. I have no idea what those papers were (they certainly were
not in the property given to me upon my release from jail) and have received nothing in the mail, despite updating the
26
RMC with my new address of: 817 N. Virginia St. #2, Reno NV 89501 and filing an official Change of Address with the
USPS shortly after I was summarily evicted (despite there being only a No Cause Summary Eviction notice against my
27
commercial lease, something entirely probibited against under NRS 40.253. Not only was I denied my Sixth Amendment
Right to Counsel where jail time was a possibility (and where, I, in fact was jailed, immediately). I was denied a
28
continuance in this matter despite a written assent to one by Reno City Attorney Pam Roberts and despite the fact that the
112
1
Reno City Attorney was given one by my supposed appointed counsel Lew Taitel (whom is "associated with"
( http://www.nevcs.com/attorney.html ) an entity that I happen to be suing Nevada Court Services, incident to the same
2
eviction proceeding for which Mr. Taitel did grant, and the RMC did grant, a continuance in the other RMC case against
me, the trespass action that was set for trial on December 13th, because Richard G. Hill, who I am also suing in
3
connection with the wrongful eviction against, was going to be on vacation and the RMC apparently found that a good
reason for a continuance, compared to the RMC feeling my being eviction on or around November 13th, then wrongfully
4
arrested in connection with the eviction, under a trespass charge, and incarcerated for a number of days, all while Richard
Hill applied an unlawful rent distraint upon many exculpatory materials that would speak to a stated and express
5 retaliatory motive on the part of Walmart and the RSIC, and other exculpatory materials being wrongfully withheld under
an unlawful rent distraint by Richard G. Hill, Esq., the same person Mr. Taitel, the Reno City Attorney, and the RMC
6
decided deserved such sanctity applied to his monthlong vacation from Thanksgiving to New Year's to grant a
continuance, with no input from me.
7
FAILURE TO AFFORD SIXTH AMENDMENT RIGHT TO COUNSEL OR GRANT DEMAND FOR JURY TRIAL;
another DEMAND FOR JURY TRIAL HEREBY MADE IN EVENT OF NEW TRIAL, SIMILARLY REQUEST FOR
8
IN FORMA PAUPERIS STATUS HEREBY MADE AND SUPPORTED BY ATTACHED IFP PETITION
9
10
CONCLUSION
11
Defendant/Appelant Coughlin hereby respectfully requests all Orders, Convictions,

th
12
Judgments, Contempt Findings, whatever, stemming from the November 30 , 2011 Trial be Vacated
or Set Aside or Reconsidered..
13
14

15
The undersigned does hereby affirm that the preceding document does not contain
16
17
the social security number of any person.
18
DATED this 12th Day of December, 2011

19
20
_/s/ Zach Coughlin
21
Zach Coughlin
Defendant
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113
1
PROOF OF SERVICE
2
I, Zach Coughlin, declare:

3
On December 12, 2011, I, Mr. Zach Coughlin served the foregoing Notice of Appeal,
Motion to Vacate and or Set Aside, JCRCP 59, JCRCP 60, Motion for Reconsideration; Motion for
5 Recusal by emailing and faxing and or placing in the mail a true copy thereof to:
6
Pamela G Roberts Company: Reno City Attorney's Office - Criminal Divison Address: P.O. Box
7
1900 Reno , NV 89505 Phone Number: 775-334-2050 Fax number: 775-334-2420 Email:
robertsp@reno.gov
8
DATED THIS12th day of December, 2011 BY:

10
11
-----------------------------
12
Zach Coughlin
13
Defendant
14
15
16
17
18
19
20
21
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25
26
27
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https://skydrive.live.com/redir.aspx?
cid=43084638f32f5f28&resid=43084638F32F5F28!
1031&parid=root
115
116
Windows Live Hotmail Print Message http://by148w.bay148.maillive.corn/mail/PrintMessages.aspx?cpids=57...
RE: your failure to propound discovery
From: Zach Coughlin (zachcoughlin@hotmail.com)

Sent: Thu 12/08/11 5:14 PM
To: hazlett-stevensc@reno.gov
Chris,
I am engaging you in relation to 11 CR 22176 an your failure to provide me
access to or copies of the discovery from the arrest of September 9, 2011, not
the trespass case. We will deal with the trespass case later. For now, please
just address your failure of provide copies of the discovery when I requested.
Can you check your phone records? Would you like me to check mine?
How about your fax records. Mine? I think you will find that we definately
did speak. Anyways, can you indicate your offices standard operating
procedure when a defendant or accused calls and writes your office up
requesting discovery within a day after the arrest? Must you provide
something within 48 hours of the arrest? What about if the arraignment is set
out one month from the arrest? Must an arraignment occur prior to that? It
seems rather suspect to assert that your office does not have any records or
discovery incident to the an arrest of September 9, 2011, when the accused
calls and writes requesting documentation incident to the arrest on
approximately September 13th, 2011 and again soon thereafter, and again
somewhat later, when discovery subsequently provided by Pam Roberts
shows a fax (only a partial portion of which, apparently, was included in the
discovery) from Sargent Avansino to your office dated September 12,
2011...Further, you did not indicate that your office had something but
wouldn't provide it, you indicated that your office simply did not have
anything. You made remarks about how you weren't going to tell this and
that person how to do their job, etc...Remember? It seems patently unfair for
the prosecutor to be provided access to this documentation over one month
prior to the defendant being afforded access to it, and sufficient time to do
who knows what with it (several pages of Sargent Avansino's fax appear
missing and the Probable Cause sheet does not appear to be reviewed and
signed off on for a probable cause finding by any Magistrate, the form is
simply blank), particularly were a continuance was at first agreed to by
Roberts in writing (only to have her weasel out of that at trial while making
jokes about the defendant's need to use the restroom in open court). Please
indicate, further, in writing, if your office received any faxed or emailed
records request from me, Zach Coughlin, at any time, including the period of
117
1 of 7 12/12/2011 4:21 PM
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time prior to the Oct 10th, 2011 arraignment.
Sincerely,
Zach Coughlin, Esq.

817 N. Virginia St. #2
Reno, NV 89501
tel: 775 338 8118
fax: 949 667 7402
Licensed in Nevada and USPTO
** Notice** This message and accompanying documents are covered by the electronic Communications Privacy Act, 18
U.S.C. §§ 2510-2521, and may contain confidential information intended for the specified individual (s) only. If you are not
the intended recipient or an agent responsible for delivering it to the intended recipient, you are hereby notified that you
have received this document in error and that any review, dissemination, copying, or the taking of any action based on the
contents of this information is strictly prohibited. This message is confidential, intended only for the named
recipient(s) and may contain information that is privileged, attorney work product or exempt from disclosure
under applicable law. If you are not the intended recipient(s), you are notified that any disclosure, copying,
distribution or any action taken or omitted to be taken in reliance on the contents of this information is prohibited
and may be unlawful. If you receive this message in error, or are not the named recipient(s), please notify the
sender, delete this e-mail from your computer, and destroy any copies in any form immediately. Receipt by anyone
other than the named recipient(s) is not a waiver of any attorney-client, work product, or other applicable
privilege.
Date: Thu, 8 Dec 2011 16:05:11 -0800

From: Hazlett-StevensC@reno.gov
To: zachcoughlin@hotmail.com
Subject: RE: your failure to propound discovery
Mr. Coughlin. I have never spoken to you and have never denied discovery to a defendant in any matter. Again
you seek to engage me in a convesation about the pending trespassing. I cannot speak with you. You are
represented by counsel.
Thank you,
Chris
Christopher Hazlett-Stevens
Deputy City Attorney
City of Reno
Tel: 326-6628
Fax: 334-4226
118
2 of 7 12/12/2011 4:21 PM
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ATTORNEY-CLIENT PRIVILEGED
This e-mail message transmission and any documents, files or previous e-mail messages attached to it, are
confidential and are protected by the attorney-client privilege and/or work product doctrine. If you are not the
intended recipient or a person responsible for delivering it to the intended recipient you are hereby notified that
any review, disclosure, copying, dissemination, distribution or use of any of the information contained in, or
attached to this e-mail transmission is STRICTLY PROHIBITED. If you have received this transmission in error,
please immediately notify us by forwarding this e-mail to the sender or by telephone at (775) 334-2050 and
then delete the message and its attachments.
- - - Original Message - - -
From: Zach Coughlin <zachcoughlin@hotmail.com>
To: <hazlett-stevensc@reno.gov>, <robertsp@reno.gov>
Date: Thu, 8 Dec 2011 15:44:36 -0800
Mr. Hazlett-Stevens,
We did definately talk on the phone regarding the matter to which I do not
have representation, the RSIC arrest case 11 DR 22176 21 for which Deputy
City Attorney Pam Roberts is the prosecutor. I was denied my Sixth
Amendment right to court appointed defense counsel in that matter, and
represented myself. As such, there is no rule precluded you from
communicating with me about 11 DR 22176 21. You did speak with me
about that. I called you within a couple days of the September 9th, 2011
arrest in that matter describing my exigent desire to obtain a copy of the
discovery. I was transferred to you and we spoke at length about it, you
describing why you could not give it to me. Is it your contention that your
office or the State does not have a duty to provide the defendant a copy of
certain pieces of discovery within 48 hours of arrest?
Regarding the matter for which Mr. Puentes took the baton from Mr. Taitel,
is it clear to you how Mr. Taitel was somehow, apparently, able to assent to
a continuance, only to, apparently, find some need to pass the baton to Mr.
Puentes very, very shortly thereafter? Why did Mr. Taitel's status as
attorney of record change? Was it due to a conflict? Why didn't that
conflict prevent Mr. Taitel from abstaining from assenting to the
continuance in the trespass case, which was scheduled for trial December
13, 2011?
Sincerely,
119
3 of 7 12/12/2011 4:21 PM
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the intended recipient or a person responsible for delivering it to the intended recipient you are hereby
Zach Coughlin, Esq. notified that any review, disclosure, copying, dissemination, distribution or use of any of the information
contained in, or attached to this e-mail transmission is STRICTLY PROHIBITED. If you have received this
transmission in error, please immediately notify us by forwarding this e-mail to the sender or by telephone at
Reno, NV 89501 (775) 334-2050 and then delete the message and its attachments.
tel: 775 338 8118
fax: 949 667 7402
-----Original Message-----
Licensed in Nevada and USPTO From: Zach Coughlin <zachcoughlin@hotmail.com>
To: <hazlett-stevensc@reno.gov>
** Notice** This message and accompanying documents are covered by the electronic Communications Privacy Act, 18 Date: Wed, 7 Dec 2011 01:48:03 -0800
U.S.C. §§ 2510-2521, and may contain confidential information intended for the specified individual (s) only. If you are Subject: your failure to propound discovery
not the intended recipient or an agent responsible for delivering it to the intended recipient, you are hereby notified that
you have received this document in error and that any review, dissemination, copying, or the taking of any action based
on the contents of this information is strictly prohibited. This message is confidential, intended only for the named Dear Mr. Hazlett-Stevens,
under applicable law. If you are not the intended recipient(s), you are notified that any disclosure, copying, I am writing to request a copy of any and all discovery, pleadings, documentation,
distribution or any action taken or omitted to be taken in reliance on the contents of this information is
correspondences, or media in any way connected to the trespass case against me for
prohibited and may be unlawful. If you receive this message in error, or are not the named recipient(s), please
which Lew Taitel was apparently my court appointed attorney, but whom no longer is.
notify the sender, delete this e-mail from your computer, and destroy any copies in any form immediately.
Receipt by anyone other than the named recipient(s) is not a waiver of any attorney-client, work product, or
Further, I wish to be copied on everything past and present in any way related to this
other applicable privilege. matter until and after I procure another attorney. I did not agree to the continuance you
sought, nor was I informed you were seeking it. I find it particularly troubling that a
continuance was granted in the trespass case to the same man who is applying an
unlawful rent distraint on both my client files, personal property, AND THE
Date: Wed, 7 Dec 2011 07:34:25 -0800
EXCLUPATING EVIDENCE I NEED TO DEFEND MYSELF IN THE PETIT
To: zachcoughlin@hotmail.com LARCENY CASE FOR WHICH I DETAIL THE COMPLAINTS I HAVE AGAINST
Subject: Re: your failure to propound discovery YOU AND YOUR OFFICE'S HANDLING BELOW. NO CONTINUANCE WAS
GRANTED OR AGREED TO AT TRIAL BY THE RMC OR MS. ROBERTS,
Mr. Coughlin. You are represented by counsel and I cannot correspond with you. I have never correponded
with you, and your statement that you spoke with me is false. I have never spoken with you. You may have PERHAPS SHE WAS TOO BUSY ALLEGEDLY SUBORNING THE PERJURY OF
your attorney, Roberto Puentes, contact me with any discovery issues or issues regarding the City's Motion to RSIC OFFICER KAMERON CRAWFORD.
Continue. Please do not correspond with me regarding this case in the future. As an attorney, you are fully
aware that I cannot communicate with a you as a represented party. Do not contact me without your
counsel. In the discovery your office provided in the petit larceny matter Ms. Roberts prosecuted
Thank you, against me there is a fax from the RSIC to you that has a fax heading for what appears to
be "page 1" followed by pages without that heading...then a heading with "page 4" etc...
Chris
Christopher Hazlett-Stevens I want the entire contents of anything provided by the RSIC and Walmart to you or
Deputy City Attorney anyone connected with the Reno City Attorney or the Reno Municipal Court. Further, I
City of Reno
Tel: 326-6628
want all media provided by Walmart, and I question why you needed 45 minutes with
Fax: 334-4226 the three witness who testified at the November 30th, 2011 trial, from 1pm to 1:45pm.
Additionally, you are hereby served a NRCP 11 motion requiring you to correct the
perjury you suborned in court with respect to the patently contradictory testimony of
Officer Crawford vis a vis the video evidence you yourself provided in discovery.
confidential and are protected by the attorney-client privilege and/or work product doctrine. If you are not
4 of 7 12/12/2011 4:21 PM 5 of 7 12/12/2011 4:21 PM
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Further, I spoke with you, Mr. Hazlett-Stevens, shortly after the September 9, 2011
arrest in this matter demanding a copy of all documentation or discovery that I had any
right to. I was told I would not have any opportunity to review such materials prior to
the arraignment, which was not set for a full 30 days out from the arrest. Do I not have
a right to a copy of the pc sheet, arrest report, and witness statements within 48 hours of
the arrest? The fax to your office from the RSIC is dated 9/12/2011, yet my written
demands and requests for such discovery and documentation were met with refusals to
provide such materials, and, in some case, claims that your office did not even have such
materials and would not get them until after the arraignment. Further, I spoke with and
provided written requests to RSIC Sargent Avansino within 2 days after the arrest and he
refused to provide the materials, as did the Reno Municipal Court. Please alert the court
to any wrongdoing on your's or the Reno City Attorney or the RSIC part in this regard in
prejudicing my ability to defend my case by delaying the production of essential
discovery, then refusing to agree to a continuance at trial, after earlier providing a
written agreement to such a continuance.
Sincerely,
Zach Coughlin, Esq.

Reno, NV 89501
tel: 775 338 8118
fax: 949 667 7402
** Notice** This message and accompanying documents are covered by the electronic Communications Privacy Act,
18 U.S.C. §§ 2510-2521, and may contain confidential information intended for the specified individual (s) only. If you
are not the intended recipient or an ag ent responsible for delivering it to the intended recipient, y ou are hereby notified
that you have received this document in error and that any review, dissemination, copying, or the taking of any action
based on the contents of this information is strictly prohibited. This message is confidential, intended only for the
named recipient(s) and may contain information that is privileged, attorney work product or exempt from
disclosure under applicable law. If you are not the intended recipient(s), you are notified that any disclosure,
copying, distribution or any action taken or omitted to be taken in reliance on the contents of this information
is prohibited and may be unlawful. If you receive this message in error, or are not the named recipient(s),
please notify the sender, delete this e-mail from your computer, and destroy any copies in any form
immediately. Receipt by anyone other than the named recipient(s) is not a waiver of any attorney-client, work
product, or other applicable privilege.
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The following Attorney is associated with and highly recommended by Nevada Court Services
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Lewis S. Taitel
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475 S. Arlington Suite 1A
Reno, Nevada 89501
(775) 322-2272
Fax: (775) 348-7977
Nevada State Bar No. 4397
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475 So. Arlington Suite 1A
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Fax: (775) 348-7977
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120
Windows Live Hotmail Print Message http://by148w.bay148.mail.live.com/mail/PrintMessages.aspx?cpids=dd... Windows Live Hotmail Print Message http://by148w.bay148.mail.live.com/mail/PrintMessages.aspx?cpids=dd...
motion for continuance the intended recipient or an agent responsible for delivering it to the intended recipient, you are hereby notified that you
From: Zach Coughlin (zachcoughlin@hotmail.com) contents of this information is strictly prohibited. This message is confidential, intended only for the named
Sent: Fri 11/11/11 1:40 AM recipient(s) and may contain information that is privileged, attorney work product or exempt from disclosure
To: robertsp@reno.gov under applicable law. If you are not the intended recipient(s), you are notified that any disclosure, copying,
privilege.
RE: motion for continuance

Sent: Wed 11/16/11 3:35 PM
To: robertsp@reno.gov
Zach Coughlin
121 River Rock St.
Reno, NV 89501
775 338 8118
** Notice** This message and accompanying documents are covered by the electronic Communications Privacy Act, 18 Thank You,
Date: Mon, 14 Nov 2011 10:36:45 -0800

From: robertsp@reno.gov
Subject: Re: motion for continuance
Mr. Coughlin, we were closed on Friday and I have just read your email. If you have not received confirmation
from the Court that your trial date has been continued, you will need to appear this afternoon at 1:00 pm in
Courtroom B of the Reno Municipal Court. We can discuss your case further at that time and if we are unable to
resolve the case, you can ask the Court again for a continuance and I won't object. However, it is the Court's
decision to grant your motion to continue. Zach Coughlin
121 River Rock St.
It is also the Court's decision whether to appoint you a legal defender. I do not plan to ask for jail time, so the
Court is not required to appoint you an attorney. In addition, you have no right to a jury trial in a misdemeanor Reno, NV 89501
case. 775 338 8118
I hope your housing situation improves. See you this afternoon. Pam Roberts, Deputy City Attorney.
U.S.C. §§ 2510-2521, and may contain confidential information intended for the specified individual (s) only. If you are
From: Zach Coughlin <zachcoughlin@hotmail.com> you have received this document in error and that any review, dissemination, copying, or the taking of any action based
To: <robertsp@reno.gov> on the contents of this information is strictly prohibited. This message is confidential, intended only for the named
Date: Fri, 11 Nov 2011 01:40:53 -0800 recipient(s) and may contain information that is privileged, attorney work product or exempt from disclosure
Subject: motion for continuance under applicable law. If you are not the intended recipient(s), you are notified that any disclosure, copying,
other applicable privilege.

Sent: Wed 11/16/11 5:30 PM
To: <robertsp@reno.gov>
Date: Wed, 16 Nov 2011 15:35:48 -0800
Subject: RE: motion for continuance
Zach Coughlin, Esq.

121 River Rock St.
Reno, NV 89501
775 338 8118
Licensed in Nevada
Thank You,
privilege.
Date: Mon, 14 Nov 2011 10:36:45 -0800
Date: Wed, 16 Nov 2011 17:12:21 -0800
From: robertsp@reno.gov Mr. Coughlin, we were closed on Friday and I have just read your email. If you have not received
To: zachcoughlin@hotmail.com confirmation from the Court that your trial date has been continued, you will need to appear this afternoon at
Subject: RE: motion for continuance 1:00 pm in Courtroom B of the Reno Municipal Court. We can discuss your case further at that time and if we
are unable to resolve the case, you can ask the Court again for a continuance and I won't object. However, it
is the Court's decision to grant your motion to continue.
Mr. Coughlin, you should have already received a notice regarding the availability of discovery and request for
reciprocal discovery. You just need to call ahead at 334-2050 and arrange to pick it up. You are entitled to
It is also the Court's decision whether to appoint you a legal defender. I do not plan to ask for jail time, so
copies of all the reports and witness statements and video we may have on this case. Since I am not calling any
the Court is not required to appoint you an attorney. In addition, you have no right to a jury trial in
additional witnesses that are not already mentioned in the reports/statements, I am not obligated to send you
a misdemeanor case.
an additional list of witnesses. I am also not obligated to do any further investigation or interviews. Pam
Roberts.
121
-----Original Message----- that you have received this document in error and that any review, dissemination, copying, or the taking of any action
From: Zach Coughlin <zachcoughlin@hotmail.com> based on the contents of this information is strictly prohibited. This message is confidential, intended only for the
Date: Fri, 11 Nov 2011 01:40:53 -0800
Subject: motion for continuance disclosure under applicable law. If you are not the intended recipient(s), you are notified that any disclosure,

Sent: Thu 11/17/11 3:37 PM
Dear Ms. Roberts,
I do not mean to suggest you do not know what your duty it. Believe me, I am well aware that you could mop
up the court room with a neophyte attorney such as myself. I was merely hoping to get some direction from you
regarding trial practice approaches in general.
Sincerely,
Zach

Sent: Mon 11/21/11 1:05 PM
Zach Coughlin
121 River Rock St.
Reno, NV 89501
775 338 8118
** Notice** This message and accompanying documents are covered by the electronic Communications Privacy Act, Sincerely,
are not the intended recipient or an agent responsible for delivering it to the intended recipient, you are hereby notified
Zach Coughlin, Esq.

121 River Rock St.
Reno, NV 89501
775 338 8118
Licensed in Nevada
Zach Coughlin, Esq.
121 River Rock St.
Reno, NV 89501
775 338 8118
Licensed in Nevada
privilege.
Date: Thu, 17 Nov 2011 07:40:44 -0800
on the contents of this information is strictly prohibited. This message is confidential, intended only for the named
CC: colterp@reno.gov recipient(s) and may contain information that is privileged, attorney work product or exempt from disclosure
Subject: RE: motion for continuance under applicable law. If you are not the intended recipient(s), you are notified that any disclosure, copying,
Mr. Coughlin, the three witnesses who were there at the first trial date include: Thomas Frontino (Walmart prohibited and may be unlawful. If you receive this message in error, or are not the named recipient(s), please
employee) and Officers Crawford and Braunworth from the Reno Sparks Indian Colony Police. I obtained the
video at the first trial date from the Walmart employee and it is available for you to view or get a copy. You
may want to view it at the City Attorney's Office as the CD doesn't seem to work on everyone's computer. Penie Receipt by anyone other than the named recipient(s) is not a waiver of any attorney-client, work product, or
Colter will be able to assist you. I am not clear on what you think my duty is, but I know what my duty is and I other applicable privilege.
will not debate it via email. Pam Roberts, Deputy City Attorney.
Date: Wed, 16 Nov 2011 17:12:21 -0800
Date: Wed, 16 Nov 2011 17:30:36 -0800
copies of all the reports and witness statements and video we may have on this case. Since I am not calling
any additional witnesses that are not already mentioned in the reports/statements, I am not obligated to send
you an additional list of witnesses. I am also not obligated to do any further investigation or interviews. Pam
Roberts.
Date: Wed, 16 Nov 2011 15:35:48 -0800 -----Original Message-----
Subject: RE: motion for continuance From: Zach Coughlin <zachcoughlin@hotmail.com>
Date: Fri, 11 Nov 2011 01:40:53 -0800
Subject: motion for continuance
Thank You,
Date: Mon, 14 Nov 2011 10:36:45 -0800

Mr. Coughlin, we were closed on Friday and I have just read your email. If you have not received
confirmation from the Court that your trial date has been continued, you will need to appear this afternoon
at 1:00 pm in Courtroom B of the Reno Municipal Court. We can discuss your case further at that time and
if we are unable to resolve the case, you can ask the Court again for a continuance and I won't object.
However, it is the Court's decision to grant your motion to continue.
It is also the Court's decision whether to appoint you a legal defender. I do not plan to ask for jail time, so Zach Coughlin
the Court is not required to appoint you an attorney. In addition, you have no right to a jury trial in 121 River Rock St.
a misdemeanor case. Reno, NV 89501
775 338 8118
122
18 U.S.C. §§ 2510-2521, and may contain confidential information intended for the specified individual (s) only. If
you are not the intended recipient or an agent responsible for delivering it to the intended recipient, you are hereby
notified that you have received this document in error and that any review, dissemination, copying, or the taking of
any action based on the contents of this information is strictly prohibited. This message is confidential, intended
only for the named recipient(s) and may contain information that is privileged, attorney work product or
exempt from disclosure under applicable law. If you are not the intended recipient(s), you are notified that
any disclosure, copying, distribution or any action taken or omitted to be taken in reliance on the contents
of this information is prohibited and may be unlawful. If you receive this message in error, or are not the
named recipient(s), please notify the sender, delete this e-mail from your computer, and destroy any copies
in any form immediately. Receipt by anyone other than the named recipient(s) is not a waiver of any
attorney-client, work product, or other applicable privilege.
temporary address change and instruction to pursue a continuance

Sent: Mon 11/21/11 4:06 PM
To: howardk@reno.gov; robertsp@reno.gov
Ms. Roberts, the opposing attorney's unlawful rent distraint is preventing me from providing all the discovery I
would like to provide you with or ascertain the need to do, and further is preventing me from having access to
the materials and information I need to litigate this case.
Zach Coughlin, Esq.

121 River Rock St.
Reno, NV 89501
775 338 8118
Licensed in Nevada
Zach Coughlin sender, delete this e-mail from your computer, and destroy any copies in any form immediately. Receipt by anyone
** Notice** This message and accompanying documents are covered by the electronic Communications Privacy Act, 18 privilege.
contents of this information is strictly prohibited. This message is confidential, intended only for the named Date: Mon, 14 Nov 2011 10:36:45 -0800
recipient(s) and may contain information that is privileged, attorney work product or exempt from disclosure From: robertsp@reno.gov
under applicable law. If you are not the intended recipient(s), you are notified that any disclosure, copying, To: zachcoughlin@hotmail.com
sender, delete this e-mail from your computer, and destroy any copies in any form immediately. Receipt by anyone from the Court that your trial date has been continued, you will need to appear this afternoon at 1:00 pm in
other than the named recipient(s) is not a waiver of any attorney-client, work product, or other applicable Courtroom B of the Reno Municipal Court. We can discuss your case further at that time and if we are unable to
privilege.
decision to grant your motion to continue.
Court is not required to appoint you an attorney. In addition, you have no right to a jury trial in a misdemeanor
case.
Sent: Mon 11/21/11 7:18 PM
From: Zach Coughlin <zachcoughlin@hotmail.com> on the contents of this information is strictly prohibited. This message is confidential, intended only for the named
To: <robertsp@reno.gov> recipient(s) and may contain information that is privileged, attorney work product or exempt from disclosure
Date: Fri, 11 Nov 2011 01:40:53 -0800
verint user agreement

Sent: Mon 11/21/11 8:40 PM
Zach Coughlin, Esq.

121 River Rock St.
Reno, NV 89501
775 338 8118
Zach Coughlin
Licensed in Nevada
121 River Rock St.
Reno, NV 89501
775 338 8118
123
privilege.
Re: temporary address change and instruction to pursue a continuance

From: Ken Howard (HowardK@reno.gov)
Sent: Tue 11/22/11 7:01 AM
To: Zach Coughlin (zachcoughlin@hotmail.com); robertsp@reno.gov
Mr. Zach Coughlin
There is an appropriate manner in which to tender "motions" to the court. They are to be properly
prepared and filed. Do not use this e-mail address to communicate directly with the judge.
Ken Howard
Reno Municipal Court Judge
Department 4
(775) 326-6673
To: <howardk@reno.gov>, <robertsp@reno.gov>
Date: Mon, 21 Nov 2011 16:06:32 -0800
Subject: temporary address change and instruction to pursue a continuance

Sent: Tue 11/29/11 1:33 PM
Dear Ms. Roberts,
The opposing attorney in the Summary Eviction Proceeding against me in my home law office/business is
asserting a lien against my office, law practice files, and materials necessary to discovery production and
defending the case that you are the prosecutor on. I believe a continuance is absolutely necessary in the
interests of justice. Additionaly, you have been informed that Walmart previous to the arrest in this matter
became upset at the accused and made threats of malicious prosecution and abuse of process incident to the
accused questioning various Wal-mart personnel and managers about Wal-Marts curious practice of remixing
and forgetting the Return Policy stated in writing at Walmart.com (and expressly made applicable to purchases
made in Wal-Mart stores). A manager named "Ellis", though who may have identified himself as "John" and a
Loss prevention associate at the West 7th Street Wal-Mart in Reno allegedly told the accused that they would
have him banned from all Wal-Marts in retaliation for the accused seeking to do something to which he was
legally entitled to do, return and item at a Wal-Mart stores in accordance with Wal-Mart's stated and written
Return Policy. There are other retaliatory aspects to the conducts and statements made by both Wal-Mart and
RSIC personnel in this case.
Additionally, the video "evidence" that you provided is shameful. It consists of two short clips in some Wal-Mart
back room where 5-6 people, including 2 RSIC officers acting under color of state law on land their employer
owns and leases to Wal-Mart attempt to coerce not only a confession, but a consent to search. There is no audio
of the video, at least not the video you provided, that is. Where is the video of the alleged acts? How you can
maintain a case such as this stemming from the accused acts in a store like Wal-Mart, that has hundreds of
cameras and only provide video from some backroom that proves nothing and, in the words of "Jeannie" the
Zach Coughlin contact person at your office "doesn't show anything", I am not sure, and whether that is violative of your duties
as a prosecutor, Nifong, NRCP 11 (see Schumacher's application of that civil rule to the DA) is not clear. You
** Notice** This message and accompanying documents are covered by the electronic Communications Privacy Act, 18 have been informed that the RSIC officer committed police misconduct and yet you brazenly announce in writing
U.S.C. §§ 2510-2521, and may contain confidential information intended for the specified individual (s) only. If you are that you do not intend to follow up on that, nor do you feel compelled to.
Zach Coughlin, Esq.
on the contents of this information is strictly prohibited. This message is confidential, intended only for the named recipient(s)
Reno, NV 89501
and may contain information that is privileged, attorney work product or exempt from disclosure under applicable law. If you are
tel: 775 338 8118
not the intended recipient(s), you are notified that any disclosure, copying, distribution or any action taken or omitted to be taken in
fax: 949 667 7402
reliance on the contents of this information is prohibited and may be unlawful. If you receive this message in error, or are not the
named recipient(s), please notify the sender, delete this e-mail from your computer, and destroy any copies in any form immediately.
Receipt by anyone other than the named recipient(s) is not a waiver of any attorney-client, work product, or other applicable
privilege.
have received this document in error and that any review, dissemination, copying, or the taking of any action based on the U.S.C. §§ 2510-2521, and may contain confidential information intended for the specified individual (s) only. If you are
contents of this information is strictly prohibited. This message is confidential, intended only for the named not the intended recipient or an agent responsible for delivering it to the intended recipient, you are hereby notified that
recipient(s) and may contain information that is privileged, attorney work product or exempt from disclosure you have received this document in error and that any review, dissemination, copying, or the taking of any action based
under applicable law. If you are not the intended recipient(s), you are notified that any disclosure, copying, on the contents of this information is strictly prohibited. This message is confidential, intended only for the named
distribution or any action taken or omitted to be taken in reliance on the contents of this information is prohibited recipient(s) and may contain information that is privileged, attorney work product or exempt from disclosure
and may be unlawful. If you receive this message in error, or are not the named recipient(s), please notify the under applicable law. If you are not the intended recipient(s), you are notified that any disclosure, copying,
sender, delete this e-mail from your computer, and destroy any copies in any form immediately. Receipt by anyone distribution or any action taken or omitted to be taken in reliance on the contents of this information is
other than the named recipient(s) is not a waiver of any attorney-client, work product, or other applicable prohibited and may be unlawful. If you receive this message in error, or are not the named recipient(s), please
privilege. notify the sender, delete this e-mail from your computer, and destroy any copies in any form immediately.
Date: Tue, 22 Nov 2011 07:59:37 -0800

To: zachcoughlin@hotmail.com Date: Thu, 17 Nov 2011 07:40:44 -0800
Subject: RE: motion for continuance From: robertsp@reno.gov
Dear Mr. Coughlin, you will need to file a motion to continue in compliance with Reno Municipal Court CC: colterp@reno.gov
procedures. As I have stated in a previous email, I do not object to your motion to continue, however, it is up Subject: RE: motion for continuance
to the Judge whether or not he will grant your motion. Regarding the video which I obtained at your previous
court date, I have told you that you can come to our office and view the video. If you still want a copy, I
Mr. Coughlin, the three witnesses who were there at the first trial date include: Thomas Frontino (Walmart
believe our staff will be able to make one for you. NRS 174.235 does not require me to do more than what I
have already done. We have provided you with the reports we have, listed the witnesses we will call and made
the video available to you. Pam Roberts, Deputy City Attorney.
may want to view it at the City Attorney's Office as the CD doesn't seem to work on everyone's computer.
Penie Colter will be able to assist you. I am not clear on what you think my duty is, but I know what my duty
is and I will not debate it via email. Pam Roberts, Deputy City Attorney.
To: <robertsp@reno.gov> -----Original Message-----
Date: Mon, 21 Nov 2011 13:05:28 -0800 From: Zach Coughlin <zachcoughlin@hotmail.com>
Subject: RE: motion for continuance To: <robertsp@reno.gov>
Date: Wed, 16 Nov 2011 17:30:36 -0800
Sincerely,
Zach Coughlin, Esq.

121 River Rock St.
Reno, NV 89501
775 338 8118
Licensed in Nevada
124
Zach Coughlin, Esq.

121 River Rock St.
Reno, NV 89501
775 338 8118
Licensed in Nevada
please notify the sender, delete this e-mail from your computer, and destroy any copies in any form Thank You,
product, or other applicable privilege. Date: Mon, 14 Nov 2011 10:36:45 -0800
Date: Wed, 16 Nov 2011 17:12:21 -0800

From: robertsp@reno.gov confirmation from the Court that your trial date has been continued, you will need to appear this
To: zachcoughlin@hotmail.com afternoon at 1:00 pm in Courtroom B of the Reno Municipal Court. We can discuss your case further at
Subject: RE: motion for continuance that time and if we are unable to resolve the case, you can ask the Court again for a continuance and I
won't object. However, it is the Court's decision to grant your motion to continue.
Mr. Coughlin, you should have already received a notice regarding the availability of discovery and request
for reciprocal discovery. You just need to call ahead at 334-2050 and arrange to pick it up. You are entitled It is also the Court's decision whether to appoint you a legal defender. I do not plan to ask for jail time,
to copies of all the reports and witness statements and video we may have on this case. Since I am not so the Court is not required to appoint you an attorney. In addition, you have no right to a jury trial in
calling any additional witnesses that are not already mentioned in the reports/statements, I am not a misdemeanor case.
obligated to send you an additional list of witnesses. I am also not obligated to do any further investigation
or interviews. Pam Roberts. I hope your housing situation improves. See you this afternoon. Pam Roberts, Deputy City Attorney.
To: <robertsp@reno.gov> -----Original Message-----
Date: Wed, 16 Nov 2011 15:35:48 -0800 From: Zach Coughlin <zachcoughlin@hotmail.com>
Subject: RE: motion for continuance To: <robertsp@reno.gov>
Date: Fri, 11 Nov 2011 01:40:53 -0800
Subject: motion for continuance taking of any action based on the contents of this information is strictly prohibited. This message is confidential,
intended only for the named recipient(s) and may contain information that is privileged, attorney work
product or exempt from disclosure under applicable law. If you are not the intended recipient(s), you are
notified that any disclosure, copying, distribution or any action taken or omitted to be taken in reliance on
the contents of this information is prohibited and may be unlawful. If you receive this message in error, or
are not the named recipient(s), please notify the sender, delete this e-mail from your computer, and
destroy any copies in any form immediately. Receipt by anyone other than the named recipient(s) is not a
waiver of any attorney-client, work product, or other applicable privilege.
FW: temporary address change and instruction to pursue a continuance

Sent: Tue 11/29/11 3:14 PM
To: robertsp@reno.gov; renomunirecords@reno.gov
1 attachment
Motion for Continuance to Reno City Atty Roberts RMC.pdf (448.9 KB)
Ms. Roberts and RMC Records Supervisor Donna,

I am forwarding this apology I sent to Judge Howard in response to his remonstration responding to my email to
him, in an abundance of caution to avoid ex parte communications with the court, outside your presence. Please
also find attach e a NRCP Rule 11 safe harbor filing ready sanctions motions I am hereby serving on you,
invoking the 21 day safe harbor, with a reservation that any misconduct you commit in the court's presence may
be punished sua sponte or subject to contemporaneous sanctions requests, particular with regard to you blase
dismissal of the official misdoncut, malicious prosecution, 42 USC Sec 1983 deprivations of civil rights under
color of state law and all those other things your office and Hartshorn, et all have been sued for over the years.
Please find attached my Motion for Continuance, being filed by fascimile today with the RMC.
Zach Coughlin, Esq.

Reno, NV 89501
tel: 775 338 8118
Zach Coughlin fax: 949 667 7402
121 River Rock St. Licensed in Nevada and USPTO
Reno, NV 89501
775 338 8118 ** Notice** This message and accompanying documents are covered by the electronic Communications Privacy Act, 18
** Notice** This message and accompanying documents are covered by the electronic Communications Privacy have received this document in error and that any review, dissemination, copying, or the taking of any action based on the
Act, 18 U.S.C. §§ 2510-2521, and may contain confidential information intended for the specified individual (s) contents of this information is strictly prohibited. This message is confidential, intended only for the named
only. If you are not the intended recipient or an agent responsible for delivering it to the intended recipient, you are recipient(s) and may contain information that is privileged, attorney work product or exempt from disclosure
hereby notified that you have received this document in error and that any review, dissemination, copying, or the under applicable law. If you are not the intended recipient(s), you are notified that any disclosure, copying,
privilege.
From: zachcoughlin@hotmail.com
To: howardk@reno.gov
Subject: RE: temporary address change and instruction to pursue a continuance
Date: Tue, 22 Nov 2011 17:22:45 -0800
Zach Coughlin, Esq.

Reno, NV 89501
tel: 775 338 8118
fax: 949 667 7402
Zach Coughlin,
your cop lying, see your video drivers license produce ap overview at U.S.C. §§ 2510-2521, and may contain confidential information intended for the specified individual (s) only. If you are not
6:49 mark the intended recipient or an agent responsible for delivering it to the intended recipient, you are hereby notified that you
Sent: Sun 12/04/11 3:37 AM
To: robertsp@reno.gov; kadlicj@reno.gov; kadlicj@ci.reno.nv.us
privilege.
125
FW: your cop lying, see your video drivers license produce ap overview at
6:49 mark
Zach Coughlin, Esq.
From: Zach Coughlin (zachcoughlin@hotmail.com) 817 N. Virginia St. #2
Sent: Sun 12/04/11 3:45 AM Reno, NV 89501
To: robertsp@reno.gov; kadlicj@reno.gov; kadlicj@ci.reno.nv.us tel: 775 338 8118
fax: 949 667 7402
privilege.
Subject: your cop lying, see your video drivers license produce ap overview at 6:49 mark
Date: Sun, 4 Dec 2011 03:37:24 -0800

Sent: Sun 12/04/11 4:05 AM
To: lcooley@rsic.org; voldenburg@rsic.org; rariwite@rsic.org; police@rsic.org; robertsp@reno.gov
pgoins@rsic.org, lcooley@rsic.org; voldenburg@rsic.org; rariwite@rsic.org; police@rsic.org

Zach Coughlin, Esq.

Reno, NV 89501
tel: 775 338 8118
fax: 949 667 7402
THE OFFICERS ARE KAMERON CRAWFORD AND BRAUNWORTH, WHO CAME ACROSS A
FAR MORE COGNITIVELY IMPAIRED IN COURT THAN HE DID IN PERSON, TO AN EXTENT
privilege.
THAT WOULD SUGGEST HE WAS DISHONORING THE LEGAL PROCESS BY HIS
"PARTICIPATION", AND ITS ALL ON TAPE.
your cop lying, see your video drivers license produce ap overview at
6:49 mark
privilege.
discovery request;
Sent: Wed 12/07/11 1:16 AM
To: robertsp@reno.gov; kadlicj@reno.gov
Zach Coughlin, Esq.

Reno, NV 89501
tel: 775 338 8118
fax: 949 667 7402
126
Zach Coughlin, Esq.

Reno, NV 89501
tel: 775 338 8118
fax: 949 667 7402
Zach Coughlin, Esq.
Reno, NV 89501
privilege.
tel: 775 338 8118
fax: 949 667 7402
RE: your failure to propound discovery U.S.C. §§ 2510-2521, and may contain confidential information intended for the specified individual (s) only. If you are not
Sent: Thu 12/08/11 3:44 PM
To: hazlett-stevensc@reno.gov; robertsp@reno.gov
recipient(s) and may contain information that is privileged, attorney work product or exempt from disclosure I am writing to request a copy of any and all discovery, pleadings, documentation,
correspondences, or media in any way connected to the trespass case against me for which
Lew Taitel was apparently my court appointed attorney, but whom no longer is. Further, I
wish to be copied on everything past and present in any way related to this matter until
other than the named recipient(s) is not a waiver of any attorney-client, work product, or other applicable and after I procure another attorney. I did not agree to the continuance you sought, nor
privilege. was I informed you were seeking it. I find it particularly troubling that a continuance was
granted in the trespass case to the same man who is applying an unlawful rent distraint on
both my client files, personal property, AND THE EXCLUPATING EVIDENCE I NEED
TO DEFEND MYSELF IN THE PETIT LARCENY CASE FOR WHICH I DETAIL THE
Date: Wed, 7 Dec 2011 07:34:25 -0800 COMPLAINTS I HAVE AGAINST YOU AND YOUR OFFICE'S HANDLING
BELOW. NO CONTINUANCE WAS GRANTED OR AGREED TO AT TRIAL BY
Subject: Re: your failure to propound discovery THE RMC OR MS. ROBERTS, PERHAPS SHE WAS TOO BUSY ALLEGEDLY
SUBORNING THE PERJURY OF RSIC OFFICER KAMERON CRAWFORD.
with you, and your statement that you spoke with me is false. I have never spoken with you. You may have
your attorney, Roberto Puentes, contact me with any discovery issues or issues regarding the City's Motion to In the discovery your office provided in the petit larceny matter Ms. Roberts prosecuted
aware that I cannot communicate with a you as a represented party. Do not contact me without your counsel. against me there is a fax from the RSIC to you that has a fax heading for what appears to
be "page 1" followed by pages without that heading...then a heading with "page 4" etc... I
Thank you,
want the entire contents of anything provided by the RSIC and Walmart to you or anyone
Chris connected with the Reno City Attorney or the Reno Municipal Court. Further, I want all
media provided by Walmart, and I question why you needed 45 minutes with the three
City of Reno witness who testified at the November 30th, 2011 trial, from 1pm to 1:45pm.
Tel: 326-6628
Fax: 334-4226
confidential and are protected by the attorney-client privilege and/or work product doctrine. If you are not the Further, I spoke with you, Mr. Hazlett-Stevens, shortly after the September 9, 2011 arrest
any review, disclosure, copying, dissemination, distribution or use of any of the information contained in, or in this matter demanding a copy of all documentation or discovery that I had any right to.
attached to this e-mail transmission is STRICTLY PROHIBITED. If you have received this transmission in error, I was told I would not have any opportunity to review such materials prior to the
then delete the message and its attachments. arraignment, which was not set for a full 30 days out from the arrest. Do I not have a
right to a copy of the pc sheet, arrest report, and witness statements within 48 hours of the
-----Original Message----- arrest? The fax to your office from the RSIC is dated 9/12/2011, yet my written demands
From: Zach Coughlin <zachcoughlin@hotmail.com> and requests for such discovery and documentation were met with refusals to provide such
materials, and, in some case, claims that your office did not even have such materials and
Date: Wed, 7 Dec 2011 01:48:03 -0800
Subject: your failure to propound discovery would not get them until after the arraignment. Further, I spoke with and provided written
requests to RSIC Sargent Avansino within 2 days after the arrest and he refused to provide
the materials, as did the Reno Municipal Court. Please alert the court to any wrongdoing
Dear Mr. Hazlett-Stevens, on your's or the Reno City Attorney or the RSIC part in this regard in prejudicing my
Windows Live Hotmail Print Message http://by148w.bay148.mail.live.com/mail/PrintMessages.aspx?cpids=dd...
ability to defend my case by delaying the production of essential discovery, then refusing
to agree to a continuance at trial, after earlier providing a written agreement to such a
continuance.
Sincerely,
Zach Coughlin, Esq.

Reno, NV 89501
tel: 775 338 8118
fax: 949 667 7402
not the intended recipient or an agent responsible for delivering it to the intended recipient, y ou are hereby notified that
127
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Case 1:05-cv-02827-GET Document 1 Filed 11/02/05 Page 1 of 7 Case 1:05-cv-02827-GET Document 1 Filed 11/02/05 Page 2 of 7
129
Case 1:05-cv-02827-GET Document 1 Filed 11/02/05 Page 7 of 7
11 cr 22176 2I
x
Zachary Barker Coughlin Judge Howard
Loss prevention manager and

"Ellis" or "John", Customer Service Manager or ASM W. 7th St. Walmart 89503
November 30, 2011 1pm
Zach Coughlin
29th November 2011
130
2:06-cv-10887-GCS-VMM Doc # 1 Filed 02/28/06 Pg 1 of 19 Pg ID 1 2:06-cv-10887-GCS-VMM Doc # 1 Filed 02/28/06 Pg 2 of 19 Pg ID 2
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https://skydrive.live.com/redir.aspx?
cid=43084638f32f5f28&resid=43084638F32F5F28!1031&parid=root
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• •
1 Case No. 11CR 22176 F I LED
2 Dept. 4 DEC 1 5 2011
3
:eM NI� Court - Dept 4
Y
Deputy CIe!'I<
4
5
6
7
8 CITY OF RENO,
Plaintiff,
9
vs. ORDER
10
ZACHARY BARKER COUGHLIN,
11
Defendant.
12 --------�/
13 On November 30, 2011, Defendant Coughlin was found guilty of the
14
offense of Petit Larceny, a violation of RMC 8.10.040. Thereafter, Appellant filed his
15
Notice of Appeal on December 13, 2011. Additionally, Defendant Coughlin filed a
16
17
Motion to Vacate and/or Set Aside, Motion for Reconsideration, Motion for Recusal
18 and Motion for Publication of Transcript at Public Expense. Appellant Coughlin
19
requested that he be provided the trial transcript at public expense on the basis that
20
he was indigent. On November 14, 2011, Defendant Coughlin filed a Motion to
21
Proceed In Forma Pauperis wherein he seeks a waiver of certain fees due to his
22
23 asserted indigence.
24
A. FAILURE TO PROPERLY SERVE CITY ATTORNEY
25
Written motions are to be served upon each of the parties. NRS
26
178.582. Service upon the attorney or upon a party must be made in the manner
27
28 provided in civil actions. NRS 178.584.
141
---_ ._--- ----- ._-_.---... . "'-' "
• •
Appellant has chosen to serve the City Attorney with these various
1
pleadings via electronic mail. There is no provision in the Nevada Revised Statutes or
2
the Rules of Court which denotes electronic mail as an appropriate means of service
3
4 of process. This alone is a basis for non-consideration/denial of Appellant's various
5 requests.
6
B. MOTION FOR PUBLICATION OF TRANSCRIPT AT PUBLIC EXPENSE and
7 MOTION TO PROCEED IN FORMA PAUPERIS
8
Defendant Coughlin cites to NRS 12.015 as authority for allowing him to
9
issue "any, necessary writ, process, pleading or paper without charge, with the
10
exception of jury fees because I lack sufficient financial ability to proceed without this
11
12 waiver".
13
Appellant Coughlin's reference to NRS 12.015 is misplaced as that
14
provision refers to civil procedure. He cites no other authority for his request.
15
This case has gone to verdict and the defendant was found guilty. It is
16
17 difficult to see what additional costs will be incurred by Appellant Coughlin other than
18
the trial transcript. This is not a complex case with numerous factual or legal issues.
19
Mr. Coughlin is a licensed attorney-at-law who implied during trial that
20
his incarceration for contempt would adversely affect his clients. Yet, Mr. Coughlin, in
21
22 his "affidavit of poverty" does not indicate any income from his practice of law. Of
23 note, Mr. Coughlin posted cash bail during the litigation of the instant matter.
24
This Court has not been provided sufficient information to determine Mr.
25
Coughlin's indigency status and will not grant him carte blanche authority to continue
26
27 the fishing expedition he conducted during the trial of this matter. Appellant's motion
28 to further pursue this matter at public expense is denied.
142
• •
1
C. MOTION TO VACATE AND/OR SET ASIDE, MOTION FOR
2 RECONSIDERA TION AND MOTION FOR RECUSAL
3
These motions will not be addressed as Defendant Coughlin has not
4
submitted a basis for their consideration.
5
IT IS HEREBY ORDERED that Defendant Coughlin's Motion to Proceed

6
7 In Forma Pauperis and Motion for Publication of Transcript at Public Expense is
8
DENIED.
9
IT IS FURTHER ORR DERED that the Motion to Vacate and/or Set
10
Aside, Motion for Reconsideration and Motion for Recusal are presently DENIED.
11
'UI.
12 DATED this /5 day of December, 201 .
13 12
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
143
• •
CERTIFICATE OF SERVICE
1
Pursuant to NRCP 5(b), I certify that I am an employee of the Reno MuniciIRI Court,
2
Reno, Nevada, and that on this date I served a true and correct copy of the foregoing document,
3
ORDER on the party(ies) set forth below:
4
5 1 Placing said document in a sealed envelope placed for collecting and mailing in the
United States mail, at Reno, Nevada, postage prepaid, following ordinary business
6 practices.
7 Facsimile to :
8
9
10
Inner-office mail following ordinary business practices.
11
12 Personal Delivery.
13
City Attorney's Office Zachary Coughlin
14
Post Office Box 1900 817 N. Virginia Street, #2
Reno, Nevada 89509 Reno, Nevada 89501
15
16
DA TED this JlL day of Dec mber, 20 II.
17
18
19
20
21
22
23
24
25
26
27
28
144
• •
JOHN J. KADLIC
Reno CityAttorney
2 PamelaG. Roberts
DeputyCityAttorney
3 Nevada State Bar No. 4041
4 Post Office Box 1900
Reno, Nevada 89505
5 Attorneys/or Plaintiff
6
IN THE MUNICIPAL COURT OF THE CITY OF RENO,
7
8 COUNTY OF WASHOE, STATE OF NEVADA
9 CITY OF RENO,
10 Plaintiff, CASE NO. IC11-0627
II
vs. DEPT.NO.4
12
ZACHAR COUGHLIN,
13
14 Defendant.
1+-
_____________________
1
15
16
NOTICE OF DENIAL OF SERVICE
17
Plaintiff Cityof Reno byand through John J. Kadlic, Reno CityAttorney, and Pamela G.
18
Roberts, Deputy CityAttorney, files this Notice of Denial of Service.
19
Plaintiff City of Reno (hereinafter the "City") is infonned and believes that on or about
20
December 13, 2011 Defendant Zachary Coughlin (hereinafter "Coughlin ") sent an email to
21
"renomunirecords@reno.gov" and former Reno Municipal Court Administrator Matt Fisk at
22
"fiskm@reno.gov". See Declaration of Pamela G.Roberts. Coughlin subsequently forward that
23
email to DeputyCityAttorneyPamelaG.Roberts(hereinafter .. DCA Roberts .. ).1d.
24
Contained within the email Coughlin sent to "renomunirecords@reno.gov" and fonner
25
Reno Municipal Court Administrator Matt Fisk at "fiskm@reno.gov" and forwarded to DCA
26
Roberts is the allegation:
27
PROOF OF SERVICE:
28
I emailed a copy of this to Pam Roberts for the Plaintiff City
Reno City Attorney
P.O. 80x 1900
Reno, NV 89505
- 1-
145
,-_.-------------------
• •
I of Reno on this date, a true and correct copy and further
email her a copy of all the 12 11 11 MOtion [sic] for New
2 Trial, etc. yesterday to:
3 Pamela G Roberts
4
• Company: Reno City Attorney's Office - Criminal
Divison [sic]
5
• Address: P.O. Box 1900 Reno, NV 89505
6 • Phone Number: 775-334-2050
• Fax number: 775-334-2420
7 • Email: robertsp@reno.gov
8
Id. Thus it appears that Coughlin is making the allegation that the City has been served with
9 some type of motion for a new trial.
10
There is no provision in the Nevada Revised Statutes, Reno Municipal Code or R.M.C.R.
11
which provides for service of motions or other pleadings via email. See Nevada Revised
12
Statutes, Reno Municipal Code and the R.M.C.R. Indeed, Coughlin has been informed by DCA
13
Roberts that the City will not accept service of any motions or other pleadings via email. See
14 Declaration of Pamela G. Roberts.
15 The City has not been properly served by Coughlin with any motions or other pleading or
16 filings in this case since Coughlin's conviction for Petit Larceny on November 30, 2011.
17 Dated this /"fI1-J day of December, 2011.
18
JOHN J. KADLIC
19 Reno City Attorney
A� ) �
�_
20
B y :----...:
-'- �
::..:.- t _" _
21
Pamela G. Robe11s
P.O. Box 1900
23 Reno, Nevada 89505
24
Attorneys for Plaintiff
25
26
27
28
Reno City Attorney

P.O. Box 1900
Reno, NV 39505
-2-
146
• •
DECLARATION OF PAMELA G. ROBERTS
2 I. I am a Deputy City Attorney for the City of Reno, Nevada.
3 2. Defendant Zachary Coughlin was found Guilty of Petit Larceny by the Honorable Judge
4 Kenneth Howard after a Trial on Wednesday, November 30, 2011.
5 3. On Monday, December 5, 2011, I opened an email from Defendant Coughlin and replied to
6 him stating that I would not respond to any correspondence from him via email and that he
7 needed to file any motions or notices in accordance with the applicable rules of the Court.
8 4. That despite my admonition to Defendant Coughlin, he has sent at least three more emails,
9 some of which could be construed as an attempt to serve me with a motion.
10 5. The aforementioned emails contain links and attachments that the City and I will not open as
we have concerns about computer viruses.

II
12 6. Plaintiff City of Reno is informed and believes that on or about December 13, 2011
13 Defendant Zachary Coughlin (hereinafter "Coughlin") sent an email to
"renomunirecords@reno.gov" and former Reno Municipal Court Administrator Matt Fisk at

14
"fiskm@reno.gov". Coughlin subsequently forward that email to me.
15
16 7. Contained within the email Coughlin sent to "renomunirecords@reno.gov" and former Reno
17 Municipal Court Administrator Matt Fisk at "fiskm@reno.gov" and forwarded to me is the
allegation:
18
PROOF OF SERVICE:
19
20 I emailed a copy of this to Pam Roberts for the Plaintiff City of Reno on this date, a true
and correct copy and further email her a copy of all the 12 11 11 MOtion [sic] for New
21 Tnal, etc. yesterday to.
22 Pamela G Roberts
23
• Company: Reno City Attorney's Office - Criminal Divison [sic]
Address: P.O. Box 1900 Reno, NV 89505
24 •
• Phone Number. 775·334-2050

25 • Fax number: 775-334-2420
• Email: robertsp@reno.gov
26
III
27
III
28
Reno City Attorney
P.O. Box 1900
Reno, NV 89505
-3-
147
• •
8. The City has not been served by Defendant Coughlin with any motions or other pleading or
2 filings in this case by mail or personal service since Coughlin's conviction for Petit Larceny
3
on November 30, 2011.
5
Pursuant to NRS 53.045, I declare under penalty of petj ury that the foregoing is true and
correct. Executed on December 14, 2011.

6
8
Pamela O. Roberts
10
11
12
13
14
IS
16
17
18
19
20
21
22
23
24
25
26
27
28
Reno City Attorney

P.O. Box 1900
Reno. NY 89505
·4-
148
• •
CERTIFICATE OF SERVICE
2 I certify that I am an employee of the Reno City Attorney, Reno, Nevada, and that on the.
3 I� day of December, 2011, I deposited for mailing at Reno, Nevada, first class postage
4 prepaid, a true and correct copy of the foregoing document addressed to:
5 Zachary Coughlin
817 N. Virginia Street #2
6
Reno, Nevada 89501
7
10
II (::IS::� �
� �ID'" 1}1 .
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Reno City Attol'ney

P.O. Bo, 1900
Reno, NV 89505
-5-
149
----------- -----
To:
:1
8459 31';jll;;e-4bd' :93ac-65c32ba
' jtl' • From: zachcouqh11n
• 12-16-11 7:41am p, 1 of 24
,
,
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817N, Virginia 8t. #2 '/.\l\ \ DEC \ S M\ ll: 21
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,I,
Reno, NV 89501
tel: 775 229-6737
, '
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, ' fax: 949 667 7402
ZachCoughlin@hotmail,com
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,i T�t: �aF' Rober I Esq. Reno City Attorney,

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FAX: NO: 775 3 2420;
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To: Reno Munic al Court
,I, Fax:email appro d for �g by Donna Ballard,
: II RMC: l'enolllu.niJ:"ecOlda:@reno.gov 775 326 5105
I
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N�ber of pag mduc4ng cover sheet 24
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O�gp;.a1 will not follow.
Ii " RE: ,I CIty of Re v Coughlin RMC 11 CR 22176 21
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art
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"
16 Prop r Defendant!App ellant
:1r'
I IN THE MUNICIPAL COURT OF THE CITY OF RENO,
8 COUNTY OF WASHOE, STATE OF NEVADA
9
,
1R CITY, FRENO; ) CaseNo:llCR22 17621

1� ;,
:Plaint" "
,
) Dept No: Judge Howard
I: v.
)
1kI " Y BARKER COUGHLIN
' ) Notice of Denial of Service' Opposition City
) of Reno'sNotice of Denial of Service: Request
Defen ant.
13T ) for Clarificatjon Rewding Deadline for Fj1ing
) Motion For New Trjal. Other Tolling Motions,
) e1c:APPUCATI ON FOR DEFERRAL OR
15 '
:i'
) WAIYER OF COURT FEES AND COST

)
1�
ii
)
1� )
18
i, )
I
19 N ce ofDeni ofService 0 OSItion C of of S ce' Re uest for Cl c
0
2
"
I",
2 t POTI:! S AND AUTHORITIES
, ,
I1
1'
2
:i
. The
. ' � deo PamRoberts provided in her Discovery clearly shows Wal-Marts Frontino perhaps
Z
2 ,
but defmitely handing a cd to RSIC Officers Braunworth and Crawford at the conclusion of
1
2 , i i,r�,,'
','i, I,
2'�I:
li"the '
st in question, However, I believe all three men testified that no other video existed relevant
:; !
i:
26!i cusation or arrest other than the interrogation room video, which was still filming the
il
27 ge of the cd between Frontino and the RSIC Officers. Further. RSIC Officer Crawford can
28 clearl be seen in the interrogation room videos receiving a drivers license from Coughlin and calling
No ceo os' '0 o • ' o 'ceo e t 0
'! I
151
1 it in on his radio, despite Crawford, testifying, under oath, at trial, that Coughlin was arrested, in large
2 part, because he did not produce a physical driver's license and the information which would be
3
contained thereon and necessary to write a citation. Crawford testified that this lack of producing a
4
drivers license (and the dispatch records can clearly show the running of Coughlin's drivers license
5
6
number, which Coughlin hereby declares under penalty of perjury he has never committed to memory
7 in his entire life). Further, in direct contradiction to the sworn testimony of both Frontino and
8 Crawford, the UPC for the cough drops does appear on both the allegedly stolen items $14.00 receipt
9
and the $80.00 receipt of items purchased immedately prior to the arrest. Both Frontino and
10
Crawford swore that the UPC did not appear on both.
11
ANALYSIS
12
13 Winston Products v. DeBoer, 122 Nev. Adv.Op. 48, 134 P. 3rd 726 (2006);“In resolving this motion,
14 we revisit the method used to compute the time for filing motions for judgment as a matter of law and
15
for a new trial and the tolling period to file a notice of appeal when these motions are served by mail
16
or electronic means. The Nevada Rules of Civil Procedure (NRCP) require these so-called tolling
17
motions to be filed within 10 days from the date a judgment is filed and served. However, the 2004
18
19 amendments to the NRCP changed the computation of time where the prescribed period is less than
20 11 days to exclude Saturdays, Sundays and nonjudicial days. Where, as here, the time to file a
21
tolling motion is 10 days, we conclude that the “period of time prescribed” in NRCP 6(a) does not
22
include the 3-day allowance for service by mail under NRCP 6(e). Therefore, the filing period for a
23
tolling motion is computed first under NRCP 6(a), and then 3 additional days are added under NRCP
24
25 6(e) when service was made by mail or electronic means. Using this computation method, we
26 conclude that appellant's tolling motions were timely filed in the district court. Accordingly, we
27
deny respondent's motion to dismiss this appeal. Further, although this issue was not addressed by
28
2 Notice of Denial of Service; Opposition City of Reno's Notice of Denial of Service; Request for Clarification Regarding Deadline
for Filing Motion For New Trial, Other Tolling Motions, etc
152
1 the parties, we conclude that the tolling motions also tolled the time to appeal from the post-judgment
2 order awarding attorney fees and costs.
3
FACTS
4
5 The final judgment after a jury verdict in favor of respondent was filed on April 18, 2005.
6
Respondent served appellant with notice of entry of the district court's final judgment via facsimile
7
and mail on April 21, 2005. Fifteen days later, on May 6, 2005, appellant moved the district court
8
for judgment as a matter of law under NRCP 50(b) or for a new trial pursuant to NRCP 59.
9
10 Respondent opposed appellant's motions in the district court, arguing, in part, that they were not
11 timely filed.
12
Before resolving the motions, on June 9, 2005, the district court entered a post-judgment order
13
awarding attorney fees and costs in favor of respondent. Notice of entry of the order was served on
14
15 appellant on June 10, 2005. On June 27, 2005, the district court entered its order denying
16 appellant's motion for judgment as a matter of law or for a new trial. The district court determined
17
that appellant's motions had been timely filed but concluded that appellant was not entitled to any
18
relief. On July 29, 2005, within 30 days after service of notice of entry of the June 27 order
19
resolving the motions, appellant filed a notice of appeal from that order, the final judgment, and the
20
21 post-judgment order awarding attorney fees and costs.
22
Respondent has filed a motion to dismiss the appeal, alleging that appellant's motions for judgment as
23
a matter of law and for a new trial were not timely and therefore did not toll the time to appeal.
24
Appellant opposes the motion.
25
26 DISCUSSION
27
28
153
1 This court lacks jurisdiction to consider an appeal that is filed beyond the time allowed under
2
NRAP 4(a).1 A timely filed motion for judgment as a matter of law under NRCP 50(b) or for a new
3
trial under NRCP 59 tolls the time for filing an appeal until no later than 30 days after a party serves
4
5 written notice that the order resolving such motions has been entered.2 A tolling motion under
6 NRCP 50(b) or NRCP 59 is timely if it is filed within 10 days after a party serves written notice that a
7
judgment has been entered.3 Three additional days are added to this filing deadline when service
8
9 was made by mail or electronic means.4
10
In the motion to dismiss, respondent argues that our prior case law requires that the 3-day allowance
11
for mailing be added directly to the 10-day period to file tolling motions before computing the filing
12
13 deadline under NRCP 6(a). Employing this rationale subjects these tolling motions to a 13-day time
14 period. Under NRCP 6(a), intermediate Saturdays, Sundays and nonjudicial days would be included
15
in the computation of the 13-day period. Applying this approach to this case results in the thirteenth
16
day from service of notice of entry falling on May 4, 2005. In this scenario, because appellant's
17
motions were not filed until May 6, 2005, they would be untimely and would not effectively toll the
18
19 time to appeal.
20
Appellant encourages us to adopt the opposite approach to that suggested by respondent. Instead of
21
first adding the 3 days for service by mail to reach a 13-day time period, appellant contends that
22
sound judicial policy favors adding the 3-day allowance only after computing the 10-day filing period
23
24 and excluding intermediate nonjudicial days under NRCP 6(a). Appellant argues that this method of
25 computing the time period is consistent with federal court interpretation of the analogous federal rule,
26
FRCP 6, and furthers the intent of NRCP 6(e) by allowing for more time when service is made by
27
28
154
1 mail. Using this method in this case, appellant argues that its motions for judgment as a matter of
2 law and for a new trial were timely filed and effectively tolled the time to appeal.
3
Rule 6 of the Nevada Rules of Civil Procedure governs time:
4
5 (a) Computation. In computing any period of time prescribed or allowed by these rules, by the local
6
rules of any district court, by order of court, or by any applicable statute, the day of the act, event, or
7
default from which the designated period of time begins to run shall not be included. The last day
8
of the period so computed shall be included, unless it is a Saturday, a Sunday, or a nonjudicial day, in
9
10 which event the period runs until the end of the next day which is not a Saturday, a Sunday, or a
11 nonjudicial day, or, when the act to be done is the filing of a paper in court, a day on which weather
12
or other conditions have made the office of the clerk of the district court inaccessible, in which event
13
the period runs until the end of the next day which is not one of the aforementioned days. When the
14
period of time prescribed or allowed is less than 11 days, intermediate Saturdays, Sundays, and
15
16 nonjudicial days shall be excluded in the computation except for those proceedings filed under Titles
17 12 or 13 of the Nevada Revised Statutes.

18
․
19
20 (e) Additional Time After Service by Mail or Electronic means. Whenever a party has the right or
21 is required to do some act or take some proceedings within a prescribed period after the service of a
22
notice or other paper, other than process, upon the party and the notice or paper is served upon the
23
party by mail or by electronic means, 3 days shall be added to the prescribed period.
24
25 (Emphases added.) This court has previously considered in two cases the issue of computing time
26 periods under NRCP 6 when service was made by mail. In Ross v. Giacomo, this court concluded
27
that in calculating the time to file a tolling motion, the 3-day allowance for service by mail is added
28
155
1 directly to the 10-day period-resulting in a 13-day filing period.5 More recently, in Custom Cabinet
2
Factory of New York v. District Court, a 2003 case involving the 30-day time period to file a request
3
for trial de novo after arbitration, we affirmed the computation method employed in Ross and held
4
that the 3-day allowance for service by mail “should be added to the time allotted by statute or rule
5
6 first” and then the time period should be computed under NRCP 6(a).6 We reasoned that the
7
alternative method of computing time under Rule 6(a) of adding the 3 days for service by mail after
8
computing the filing deadline “would potentially result in an additional five to seven days to file
9
10 motions” which was “complicated and absurd.” 7 Instead, we believed at the time that using the
11 method of first adding the 3 days for service by mail to the time allotted by statute or rule and then
12
computing the time period, was a simpler and speedier computation scheme.8
13
14 However, in 2004, after our decisions in Ross and Custom Cabinet, we amended NRCP 6 to be
15
consistent with the 1985 amendments to the federal rule.9 That amendment made the exclusion of
16
intermediate Saturdays, Sundays, and nonjudicial days applicable in computing time periods of less
17
18 than 11 days.10 Before the 2004 amendment, NRCP 6(a) only excluded intermediate nonjudicial
19 days in computing periods of less than 7 days. Several federal courts have considered the intent
20
behind FRCP 6(e)'s 3-day mailing allowance in interpreting the 1985 amendment to the computation
21
provision of FRCP 6(a).11 In computing time periods in those cases, the federal decisions have
22
23 focused on the “period of time prescribed” and determined that it does not include the 3 additional
24 days for mailing under Rule 6(e). Those federal courts have therefore found that the less-than-11-
25
day provision of Rule 6(a) is applicable to 10-day periods even when service is made by mail.
26
27
In the first seminal case after the 1985 amendment to FRCP 6, a federal district court in Nalty v.
28 Nalty Tree Farm recognized that the amendment “was intended to extend the response time allowed
156
1 under various rules prescribing ten day limits.” 12 The Nalty court observed, however, that adding
2
additional time for mailing under Rule 6(e) to create a 13-day time period ultimately resulted in the
3
same amount of time that was allowed before the 1985 amendment because at that time, nonjudicial
4
5 days were not excluded from the computation of 10-day periods.13 The court determined that
6 “[s]uch a result cannot be consistent with the obvious intentions of the advisory committee” and
7
declared that “[t]he mailing rule should provide three extra days, in addition to whatever period the
8
party would otherwise have, to reflect the presumed lapse in notice because of service by mail.” 14
9
10 The Nalty court thus held that the 3-day allowance for mailing should be added only after computing
11
the time period under Rule 6(a).15
12
13 Likewise, in Lerro v. Quaker Oats Co.,16 the Seventh Circuit Court of Appeals addressed this same
14 issue in the context of an objection to a magistrate judge's report and concluded that “the period of
15
time” in Rule 6(a) was not the sum of all allowable periods. The court noted that Rule 6(e) is
16
“designed to give a litigant approximately the same effective time to respond whether papers are
17
18 served by hand or by mail.” 17 And the court reasoned that “[t]he only way to carry out Rule 6(e)'s
19
function of adding time to compensate for delays in mail delivery is to employ Rule 6(a) first.” 18
20
21 In Tushner v. United States District Court for Central District of California, the Ninth Circuit Court
22 of Appeals concluded that the 10-day period prescribed for filing a jury demand did not become a 13-
23
day period for purposes of Rule 6(a) as a result of the service-by-mail provision of Rule 6(e).19 The
24
court stated that Rule 6(e) should not be “construed to render prescribed periods of less than eleven
25
26
days ineligible for beneficial treatment under Rule 6(a)” and concluded that it “would be anomalous ․
27 to interpret the rules so that a litigant served by mail would have less time for action than a litigant
28
served personally.” 20 Instead, the court held that “[t]he period is calculated first by applying the
157
1 less-than-eleven-day provision of Rule 6(a), thereby excluding any intervening weekends and legal
2 holidays. After this computation, three additional days are added for mail service under Rule 6(e).”
3
21
4
5
As we noted in Custom Cabinet, federal decisions are not binding on this court.22 However, “[w]e
6
have previously recognized that federal decisions involving the Federal Rules of Civil Procedure
7
8 provide persuasive authority when this court examines its rules.” 23 On the particular issue of
9 computing time under NRCP 6, the federal decisions discussed above in regard to the federal rule are
10 logically compelling.
11
Our decisions in Custom Cabinet and Ross reflect the court's desire to maintain a simple, efficient
12
13 and uniform system for computing time periods under NRCP 6.24 However, neither of those cases
14
considered the impact that their computation scheme would have on filing periods subject to the
15
provision in NRCP 6(a) for the exclusion of intermediate nonjudicial days. In light of our recent
16
amendment to NRCP 6(a), which made the nonjudicial-day exclusion applicable to longer time
17
18 periods, we can no longer reconcile the utility of Ross and Custom Cabinet with the stifling effect
19 that they have on the intent behind Rule 6(e). Rule 6(e) is intended to provide litigants with
20 additional time when service is made by mail. The computation method we employed in Custom
21
Cabinet and Ross works contrary to that intent. Using the method employed in those cases after the
22
amendment to Rule 6(a), when a 10-day time period is involved, the party personally served would
23
24
always have more time to act than a party served by mail.
25
For example, NRCP 59(b) provides that “[a] motion for a new trial shall be filed no later than 10 days
26
after service of written notice of the entry of the judgment.” If a party is personally served with
27
notice of entry, that party has 14 calendar days to file a motion because under NRCP 6(a), the
28
158
1 intermediate nonjudicial days would be excluded from the computation. But under the Ross and
2 Custom Cabinet computation scheme, if that party had been served by mail, that party would only
3
have 13 calendar days to file the same motion because the intermediate nonjudicial days would be
4
included in the computation. And after taking into account the actual time for delivery of mail, a
5
6
party served by mail would certainly have even less than 13 calendar days to act. This result defeats
7 the purpose of Rule 6(e) and essentially makes the amendment to Rule 6(a) a nullity by converting
8 10-day time periods into 13-day periods that do not garner the benefit of the amendment. As the
9
Seventh Circuit observed in Lerro, “[i]nteractions within a complex set of rules sometimes can have
10
unexpected and unwelcome effects, but we should not create them when the text readily can bear
11
12 another meaning.” 25 We should not do so here in interpreting NRCP 6.
13
We therefore reverse our decisions in Custom Cabinet and Ross to the extent that they require that
14
filing periods be computed by adding the 3 days for service by mail under NRCP 6(e) to the
15
16 prescribed period before applying NRCP 6(a). Consistent with the compelling federal cases
17 discussed above, we hold that the 10-day time period for filing motions for judgment as a matter of
18
law and for a new trial should be calculated first under NRCP 6(a), excluding intermediate Saturdays,
19
Sundays and nonjudicial days. If service was made by mail or electronic means, 3 days should
20
thereafter be added pursuant to NRCP 6(e).
21
22 In this case, notice of the judgment's entry was served by mail on Thursday, April 21, 2005.
23
Computing the 10-day time period from this date and excluding intermediate nonjudicial days under
24
NRCP 6(a), extended the deadline for tolling motions to Thursday, May 5, 2005. Adding 3 days at
25
that point for service by mail made Monday, May 9, 2005, the final deadline to file motions for
26
27 judgment as a matter of law or for a new trial. Appellant's motions were filed before that date, and
28 therefore they were timely filed and effectively tolled the time to appeal. Thereafter, appellant
159
1 timely filed a notice of appeal within 30 days after service of written notice of entry of the order
2
resolving the tolling motions.26
3
4 Finally, although the motion to dismiss and opposition did not address whether appellant's tolling
5 motions tolled the time to appeal from the post-judgment order awarding attorney fees, because of the
6
ambiguous nature of this area of law and the potential pitfall that it may present to practitioners, we
7
elect to address it sua sponte.27 The precise issue is whether a tolling motion directed at the final
8
9 judgment also tolls the time to appeal from a special order after final judgment. This is an issue of
10 first impression in Nevada.

11
An order awarding attorney fees and costs is substantively appealable as a special order after final
12
13 judgment.28 Special orders after final judgment are appealable because they affect the rights of a
14
party growing out of the final judgment.29 Like an appeal from a final judgment, an appeal from an
15
order awarding attorney fees and costs must be filed no more than 30 days from the date that notice
16
17 of the order's entry is served.30
18
Here, notice of entry of the order awarding attorney fees and costs was served on appellant on June
19
10, 2005. However, appellant did not file its notice of appeal until July 29, 2005-well beyond the
20
21 30-day time limit allowed under NRAP 4(a)(1). Accordingly, this court only has jurisdiction to
22 consider issues relating to the attorney fees and costs order if the time to appeal from that order was
23
tolled by appellant's motions for judgment as a matter of law and for a new trial.
24
NRAP 4(a)(4) provides that when a tolling motion is filed, “the time to file a notice of appeal runs for
25
26 all parties from entry of an order disposing of the last such remaining motion.” This court's
27
decisions have evaluated tolling motions in the context of appeals from final judgments.31 However,
28
10 Notice of Denial of Service; Opposition City of Reno's Notice of Denial of Service; Request for Clarification Regarding
Deadline for Filing Motion For New Trial, Other Tolling Motions, etc
160
1 because NRAP 4(a)(4) does not specify from which orders the time to appeal may be tolled, its
2 applicability to post-judgment orders awarding attorney fees and costs is unclear.
3
In this case, the order awarding attorney fees to respondent was predicated on the final judgment in
4
5 respondent's favor. There is thus a close connection between the final judgment and the special
6 order after final judgment in that a change to the final judgment would likely result in a change to the
7 special order after final judgment. By definition, any special order after final judgment must be
8
closely related to the judgment. This close connection leads us to conclude that the tolling motions
9
enumerated in NRAP 4(a)(4) apply to both types of orders. Any other interpretation of NRAP 4(a)
10
11 (4) would result in the appeal of a post-judgment order proceeding in this court while the underlying
12 judgment was still subject to change during the pendency of tolling motions in the district court.
13
Such an effect would not only impede judicial economy and result in piecemeal litigation,32 but it
14
would also likely be counterintuitive to many legal practitioners and create significant confusion over
15
16
the time for filing appeals from special orders after final judgment. As we have previously
17 explained, “[t]he filing of a simple notice of appeal was intended to take the place of more
18 complicated procedures to obtain review, and the notice should not be used as a technical trap for the
19
unwary draftsman.” 33 Our interpretation of NRAP 4(a)(4) tolling motions should reflect our intent
20
to preserve a simple and efficient procedure for filing a notice of appeal.
21
22 We therefore hold that a timely filed tolling motion under NRAP 4(a)(4) tolls the time to appeal
23
from both final judgment and special orders entered after final judgment. Accordingly, this court
24
has jurisdiction to consider the merits of any issues raised in this appeal relating to the award of
25
26
attorney fees and costs in the district court's June 9, 2005, order.
27 CONCLUSION
28
161
1 We reverse our decisions in Custom Cabinet and Ross to the extent that they require that filing
2 periods be computed by adding 3 days for service by mail under NRCP 6(e) to the prescribed time
3
period before applying NRCP 6(a). Further, we hold that the “period of time prescribed” does not
4
include the 3-day allowance for service by mail under NRCP 6(e) and that time periods should be
5
6
calculated first under NRCP 6(a) before adding time under NRCP 6(e). Using this method of
7 computation, we conclude that appellant's motions for judgment as a matter of law and for new trial
8 were timely filed and thus effectively tolled the time to appeal. As a result, appellant's notice of
9
appeal was timely filed. Accordingly, we deny respondent's motion to dismiss.
10
11 We further hold that timely motions listed under NRAP 4(a)(4) toll both the time to appeal from the
12 final judgment and the time to appeal from a special order entered after final judgment.
13 Accordingly, this court also has jurisdiction to consider the merits of appellant's appeal from the
14
district court's order awarding attorney fees and costs in favor of respondent.
15
16 FOOTNOTES
17
1. See NRAP 3(a); Alvis v. State, Gaming Control Bd., 99 Nev. 184, 660 P.2d 980 (1983).
18
2. NRAP 4(a)(4).
19
20 3. NRCP 50(b); NRCP 59(b).

21
4. NRCP 6(e).
22
23 5. 97 Nev. 550, 553 nn. 1 & 2, 635 P.2d 298, 300 nn. 1 & 2 (1981).
24
6. 119 Nev. 51, 54-55, 62 P.3d 741, 743 (2003).
25
26 7. Id. at 54, 62 P.3d at 742-43.

27
8. Id.
28
162
1 9. See NRCP 6 drafter's note (2004).
2
10. Id.
3
4 11. See, e.g., Nalty v. Nalty Tree Farm, 654 F.Supp. 1315 (S.D.Ala.1987); Tushner v. U.S. Dist.
5 Court for Cent. Dist. of Cal., 829 F.2d 853 (9th Cir.1987); Lerro v. Quaker Oats Co., 84 F.3d 239
6
(7th Cir.1996).
7
12. 654 F.Supp. at 1317.
8
9 13. Id.
10
14. Id.
11
12 15. Id. at 1317-18.

13
16. 84 F.3d 239, 242.
14
15 17. Id.
16
18. Id.
17
18 19. 829 F.2d at 855-56.
19
20. Id. (citing Nalty, 654 F.Supp. at 1317).
20
21 21. Id. at 855-56.
22
22. 119 Nev. at 54, 62 P.3d at 742-43.
23
23. Nelson v. Heer, 121 Nev. 832, 122 P.3d 1252, 1253 (2005).
24
25 24. Custom Cabinet, 119 Nev. at 55, 62 P.3d at 743.

26
25. 84 F.3d at 242.
27
26. NRAP 4(a)(4).
28
163
1 27. See Albios v. Horizon Communities, Inc., 122 Nev. 409, 132 P.3d 1022 (2006); McNair v.
Rivera, 110 Nev. 463, 468 n. 6, 874 P.2d 1240, 1244 n. 6 (1994); Bradley v. Romeo, 102 Nev. 103,
2 105, 716 P.2d 227, 228 (1986); Western Indus., Inc. v. General Ins. Co., 91 Nev. 222, 229-30, 533
3
P.2d 473, 478 (1975).
28. Smith v. Crown Financial Services, 111 Nev. 277, 289 n. 2, 890 P.2d 769, 771 n. 2 (1995).
4
29. See Gumm v. Mainor, 118 Nev. 912, 59 P.3d 1220 (2002).
5
30. NRAP 4(a)(1).
6 31. See, e.g., Matter of Application of Duong, 118 Nev. 920, 922-23, 59 P.3d 1210, 1212 (2002)
7 (concluding that a timely filed motion to amend or make additional findings of fact tolled the time to
appeal from a final judgment denying a petition to seal criminal records); Chapman Industries v.
8 United Insurance, 110 Nev. 454, 457, 874 P.2d 739, 741 (1994) (concluding that timely filed tolling
motions tolled the time to appeal from the final judgment); Able Electric, Inc. v. Kaufman, 104 Nev.
9 29, 31-32, 752 P.2d 218, 220 (1988) (concluding that a motion to alter or amend tolled the time to
10
appeal from the final judgment).
32. See, e.g., Hallicrafters Co. v. Moore, 102 Nev. 526, 728 P.2d 441 (1986).
11
33. Forman v. Eagle Thrifty Drugs & Markets, 89 Nev. 533, 536, 516 P.2d 1234, 1235 (1973),
12 overruled on other grounds by Garvin v. Dist. Ct., 118 Nev. 749, 751, 59 P.3d 1180, 1181 (2002).”
Winston Products v. DeBoer, 122 Nev. Adv.Op. 48, 134 P. 3rd 726 (2006);
13
The above, admittedly extended citation, applies to this issues at hand. Wherefore, the
14
udnersigned seeks a copy of the Order from the 11 30 , 2011 Trial, including any Contempt Order,
15
16 which must set for the with specificity pursuant to Houston v. Eight Judicial Distirct Court when
17 Judge Pomeranze put Houston in cuffs for about 30 minutes, a case I am somewhat aware of:
18
Coughlin Mandamus:
19
http://caseinfo.nvsupremecourt.us/public/caseView.do?csIID=22746
20
21
22 Houston Mandamus:
23 http://caseinfo.nvsupremecourt.us/public/caseView.do?csIID=14052
24
DATED this December 16th, 2011
25
26
_/s/ Zach Coughlin
27
Zach Coughlin
28 Defendant
164
1 DECLARATION OF ZACH COUGHIN
2
3
1. I am the Defendant in this action.
4
5 2. I am not sure exactly what Judge Howard Ordered at the conclusion of the November 20th,
6
20ll Trial
7
3. I have not been entirely sure what the difference is between emails and faxes, as many people
8
9 send faxes from their computers, like email, and it is my understanding that all electronic
10 transmissions, whether text, sound, video, whatever, are ultimately just converted to series of
11
1's and 0's....Nonetheless, I have read the RMCR Rule 5 on service of motions by fascimile
12
and made reasonable attempts to comply with Ms. Roberts request that I interpret that rule to
13
mean a transmission of 1's and 0's that is not “email” based. As such, I fax her from a fax
14
15 number of mine, 949-667-7402 and have faxed her the December 13th Motion for a New Trial,
16 etc. to Ms. Roberts at her fax number. I know of know rule that allows Ms. Roberts, a public
17
employee, to all the sudden declare a citizen is not allowed to email her, much less opposing
18
counsel in a case.
19
20 4. Attorneys in private practice, as far as I know, manage to open attachments, use Spybot,
21 Malwarebytes, SuperAntiSpyware, whatever....they make it happen without a super bloated

22
governmental salary and don't claim a “fear of viruses” should dictate everything, in my
23
opinion.
24
25 5. At the conclusion of the November 30th, 2011 Trial, indeed, several hours prior to its
26 conclusion even, I was extremely faint and it was very difficult to function at the level
27
necessary to put on a defense. I do not wish to go into the why's and wherefores of this, it
28
165
1 may involved ADA/privacy issues/medical issues, but, suffice to say, I in no way could have
2 imagined that the RMC would see fit to hold everyone there, many getting paid quite a bit of
3
overtime, in some incredible effort to make sure this one little old petit larceny trial got done
4
super, super fast. I could have never imagined that the Trial would continue until almost 9 pm
5
6
at night, why, in my experience, government employees generally leave their office buildings
7 as soon after 5 pm as humanly possible. As such, I was in no way prepared,
8 physically/mentally/medically, etc. to continue on that late into the evening.

9
6. Apparently, at the close of Trial, Judge Howard made a ruling. I have received conflicting
10
11 reports as to whether the RMC is asserting that I entered a guilty plea (I do not believe that
12 assertion comports with reality in any way) or whether Judge Howard made a finding of
13 Contempt committed in the presence of the Court 22.030 and summarily sentenced me to
14
three days in jail, with no possibility of stay or appellate review, despite Judge Howard having
15
denied me my Sixth Amendment Right To Counsel, assuring me he would not order any
16
17
incarceration. I outlined to Judge Howard what a devastating effect his ruling might have on
18 my clients cases to the extent he was not affording me any opportunity to help them make
19 other arrangements to avoid prejudicing their cases, and Judge Howard agreed that he was sad
20
about that then angrily left the bench after exclaiming something like “we are off the record”.
21
22
7. At that point Judge Howard's team of Marshalls (I think about four of the Marshalls, at least
23 were working at overtime wages at that point in the night to insure that the Wal-Mart clerk
24 would not be burdened by having to return to court during normal business hours should a
25
continuance have been granted) stormed up to me and demanded I assume a handcuffed
26
position, despite my passionate pleas that I needed to be able to hit the “save” button on my
27
28
notes from the trial on my netbook computer. The Marshals told me that was not allowed to
166
1 hit the “save” button and that they didn't care about my notes being lost. Its really was quite
2 remarkable the extent to which these Marshals treated me like I just knocked off a liquor store
3
with a firearm, pistol whipped the cashier, then happened upon them in the parking lot after
4
they witnessed the entire event.
5
6 8. I was taken back to a holding cell for several minutes, whereupon I was summoned back into
7 the court room and Judge Howards presence where he talked some more. As I recall, Judge
8
Howard mentioned a 10 day limitations period or deadline that would be running from the
9
notice of entry of his Verdict and Contempt Finding. Judge Howard mentioned that, given
10
11 that he was incarcerating me for the next 3 days, he was going to extend all deadlines which
12 might apply to any notices of appeal or motions seeking a new trial, to set aside the judgment,
13 vacate, etc an additional three days after the normal time on which those limitations periods
14
would run. Judge Howard seemed to explain that this would have the effect of giving me
15
more time to undertake to file these pleadings, motions, and notices if I so choose so that the
16
17
summary incarceration (which Judge Howard was sure to point out would not be bailable or
18 otherwise circumvented by any attempts to access justice) would not prejudice my ability to
19 do so. As I understood it this meant lengthening the time I had to file such papers, not
20
shortening it, and Judge Howard seemed to indicate that the period to file such things would
21
still be adjudged to be within the 11 days or less cited in NRCP 6(a), and, as such, non
22
judicial days would not count towards the 10 days within which I must file the various post
23
24 Verdict papers I might want to file. Judge Howard seemed to indicate that the three additional
25 days he was granting me would be added on after the expiration of those 10 non judicial days
26
from notice of entry of Judge Howard's Order was filed with the RMC and served upon me.
27
28
167
1 9. It is my recollection that Judge Howard then left the courtroom and I was left alone with
2 about 4 Marshals, all collecting overtime. At that point the got a bit rough with me and
3
started speaking in very hostile, ominous tones, shoving some papers in front of my face, but
4
not long enough for me to be able to read them or discern what they related to. The Marshals
5
6
began demanding that I sign these papers. I asked them if they were mortgage documents or
7 perhaps some student loan agreements or other sorts of documents for which any reasonable
8 person would want an opportunity to review prior to signing. This made the Marshals even
9
more angry than they normally seem, and they typically seem very, very angry most of the
10
time, to me at least. In fact, Marshal Mentzel, at My October 11th, 2011 arraignment had
11
become enraged with me for askign questions about my Sixth Amendment Right to Counsel. I
12
13 reported this to the court and even made a notation about it, I believe, on the document
14 Marshal Mentzel demanded I sign on that day. That same day Marshal Mentzel criticized me
15
to my face after I appeared before Judge Gardner for the arraignment. Mentzel told me I had
16
asked Judge Gardner stupid questions, and I believe he made some other insulting and
17
threatening remarks to me at that time, but I am a bit afraid to get into here in much detail.
18
19 10. So, on November 30th, 2011, after Judge Howard left the courtroom the Marshals would not
20
let me read the papers they wanted me to sign for more than a second or two before they
21
began hounding me to sign them in angry and threatening tones. I was so distraught from the
22
various irregularities I perceived in the Trial, and that was only compounded by the thuggish
23
24 behavior of the Marshals, who quickly informed me that they didn't have time for me to read
25 anything and dragged me away to the 3 days of incarceration I faced, while my car was sure
26
to get towed (especially considering the Deputees at the Washoe County Jail saw fit to refuse
27
to allow me to make more than, I believe, a single phone call, shortly after arriving at the jail,
28
168
1 whereupon they went into their usual routine of retaliating against one who refuses to divulge
2 their religious preference or one who cannot answer all of their highly invasive questions with
3
the exact degree of specificity they demand. This retaliation, in my case, included forcing me
4
into some sort of position on my knees extremely close to the crotches of several WCSO
5
6
Deputees in some sort of sadistic forced simulation of my performing oral sex upon them, at
7 least from my point of view. I was placed in a freezing cold room, with a cement floor, by
8 myself, in retaliaton for failing to disclose my religious preference and indicating that I was
9
not exactly sure how much money I made each month given the variable nature of my
10
compensation. I was place alone in a holding cell with nothing but a wooden bench, and the
11
ice cold cement floor due to the cell being sequestered away from the buildings heat sources,
12
13 including other people. My dog was left to fend for itself. My dog was feature in this
14 December's Nevada Lawyer magazine, Jackson Pawluck, a 3 year old Pekingnese.

15
11. 3 Days later when I was release from jail, the personal property returned to me did not
16
17
included any Verdict or Contempt Finding/Order related to the November 30th, 2011 Trial in
18 RMC 11 CR 22176. I called several times in the days following my release and spoke with
19 Veronica Lopez (though it took several days to ascertain her last name given that neither she
20
nor anyone associated with the RMC would divulge it to me) whom informed me that I had
21
been served Judge Howard's Order at the conclusion of the November 30th, 2011 Trial. Ms.
22
Lopez immediately took a bullying, hostile, aggressive tone with me that seem completely out
23
24 of place coming from her given the position of authority the public has entrusted her with and
25 what I feel is a duty on her part to attempt to come across as “judicial” rather than tyrannical.
26
12. I informed Ms. Lopez that I did not feel I had been served at all, and that I was not at all sure
27
28
what she was referring to, but that I would definitely like to get a copy of any Order
169
1 immediately, as well as a copy of the audio of the Trial. I believe Ms. Lopez informed me
2 that I would not be allowed a copy of the audio, but that I would need to pay for a transcript to
3
be made. I am sure, however, that a female RMC filing office counter employee told me on
4
or about the same day that I would not ever be provided a copy of the audio recording of the
5
6
trial but that I would need to pay to have a transcript made, and that I could only use Pam
7 Longoni, the RMC's Official Transcriptist.
8
13. I called Ms. Longoni and when I finally got ahold of her she informed me that she would need
9
the RMC to allow her access to the audio (despite her being “linked” to the RMC's systems),
10
11 and that until that was done, she could not quote me an estimate for the transcript cost, nor
12 could she accept any payment form me. I believe Ms. Longoni further indicated to me that I
13 would not be able to get a copy of the actual audio recording either
14
14. I have sent several written communications and had several verbal communications with D.
15
16 Ballard and other RMC personnel expressing my exigent desire to get a copy of the audio of
17 the Trial, and how necessary it was to preparing filings/motions/pleadings for which I had a
18 very limited period of time to craft.
19
15. Before, while, and after speaking with Ms. Ballard, a gentleman whose name escapes me but
20
21 who is a filing counter clerk at the RMC told me I would need to get a subpoena to get a copy
22 of the RMC docket in my case, and that he couldn't give me copies of anything in my case,
23
certainly not the Order stemming from the November 30th, 2011 Trial, that he did not have
24
access to such, and even if he did, would not provide it, and that his system did not show
25
entry of anything in connection with the November 30th, 2011 Trial. He further verified that
26
27 there had not been any entry in his “docket” for RMC 11 CR22176 2I and that no Notice of
28 Entry of Order or Entry of Order existed in his sytem or computer for that matter following
170
1 the Trial. He did indicate that “they” said the Motion for New Trial that I had recently filed
2 was timely, and I believe he said “they” said the day he and I were currently speaking was
3
“the last day they gave you to file”, which I believe Tuesday, December 13th, and given the
4
“additional 3 days” language that I recall Judge Howard mentioning he was adding on to
5
6
allow me more time to file, would mean that “they” (I took “they” to be “Veronica”, whom
7 the gentleman clerk steadfastly refused to identify by last name and for which the phone
8 number he wrote down for me in his own handwriting with “Veronica” written out turned out
9
to be a disconnected number) had assumed service was appropriately performed at the
10
conclusion of the Trial, and that 13 days began running on the following day, that the half a
11
day the RMC is open on Fridays would count as a full judicial day, and that non judicial days
12
13 would be included in counting towards this 13 days given the way “they” or “Veronica” had
14 interpreted Judge Howard's Order, apparently in a way that made the time I had to file these
15
various papers shorter than it would have been had Judge Howard simply not granted an
16
additional three days given the dictates of not counting non judicial days in NRCP 6(e). It is
17
my understanding, however, the I have not even been served this Verdict/Order, and that any
18
19 limitations period must not even begin running until I am appropriately served. Veronica
20 admitted to me on the phone, I believe on Monday or Tuesday when I called her from the
21
free phone in the Washoe County Law library with law libarian employee Linda Blakeley
22
sitting within earshot, that the RMC felt it had appropriately served me the Order at the
23
conlcusion of the trial and had failed to otherwise send me a copy in the mail or by fax. I
24
25 asked Ms. Lopez if I could get a copy of the Order, as well as any other Orders that had been
26 issued in the case. She agree to fax me only the Order from the conclusion of the November
27
30th, 2011 Trial, refusing to provide any other Orders. As of yet, despite reading back to her
28
171
1 my fax number at least twice, I have yet to receive a fax containing anything from the RMC,
2 much less the Order following the November 30, 2011 Trial.
3
APPLICATION FOR DEFERRAL OR WAIVER OF COURT FEES AND COST
4
5 This is an Application for Deferral of Court Fees and Costs.

STATEMENTS MADE TO THE COURT UNDER OATH. I swear or affirm that the information in this application is
6
true and correct. I make this statement under the penalty of prosecution for perjury if it is determined that I did not tell the
truth.
7
I am requesting a deferral or waiver of the following fees and costs in my case:
8
___x___Any or all of the following: All filing fees; fees for the issuance of either a summons and subpoena;
9 ___x___Fees for obtaining one certified copy of a temporary order in a domestic relations case or a final order, judgment
or decree in all criminal proceedings.
10
___x___Fees for service of process by a sheriff, marshal, constable or law enforcement. Fees for service by publication.
11 ___X___Filing fees and photocopy fees for the preparation of the record on appeal.
12 ___X___Court reporter’s fees of reporters or transcribers employed by the court for the preparation of the transcript.
The basis for the request is:
13
1. WAIVER: I am permanently unable to pay. My income and liquid assets are insufficient or barely sufficient to meet
14 the daily essentials of life and unlikely to change in the foreseeable future.
2. DEFERRAL:
15
a. My income is insufficient or is barely sufficient to meet the daily essentials of life, and includes no allotment that could
16 be budgeted for the fees and costs that are required to gain access to the court.
b. I do not have the money to pay the court fees and costs now. I do not know if I can pay the fees and costs at a later
17 date.
18
19
20 The undersigned does hereby affirm that the preceding document does not contain
21 the social security number of any person.

22 Pursuant to NRS 53.045, I declare under penalty of perjury that the foregoing is true and correct. Executed on December
16, 2011
23
24
25
26 _/s/ Zach Coughlin

Zach Coughlin
27 Defendant
28
172
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PROOF OF SERYICE
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and 11 ' ing a true copy thereof to:
Pame a G Roberts, Esq.

Reno,
, "
ity Attorney's Office - Criminal Divison
.-;v'.() ,Box 1900 Reno , NV 89505
, Phon Number: 775-334-2050
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D THIS 16th day of December, 2011 BY:
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1
Zach Coughlin
2
3
Reno, NV 89501
Tele: 775-229-6737
4
Fax: 949-667-7402
Pro per Defendant/Appellant
5
JUSTICE COURT RENO TOWNSHIP

7
WASHOE COUNTY, NEVADA
CITY OF RENO; )
9
Plaintiff. )
10 v. )
ZACHARY BARKER COUGHLIN ) Case No:11 CR 22176 2I
11
Defendant. ) Dept No: Judge Howard
)
12
) SUPPLEMENTAL TO Notice of Appeal,

13
) Motion to Vacate and or Set Aside, JCRCP 59,
) JCRCP 60, Motion for Reconsideration;
14
Motion for Recusal; Motion to Strike
15
16
17
18
19
20
21
22
23
24
25
26
27
28
1 SUPPLEMENTAL TO Notice of Appeal, Motion to Vacate and or Set Aside, JCRCP 59, JCRCP 60,
Motion for Reconsideration; Motion for Recusal
175
1
Notice of Appeal, Motion to Vacate and or Set Aside, JCRCP 59, JCRCP 60, Motion for
�
Reconsideration; Motion for Recusal; Motion For Publication Of Transcript at Public Expense,
�
2
Petition for In Forma Pauperis Status
�
3

4
CASE APPEAL STATEMENT

5
Defendant/Appellant, Zach Coughlin, hereby files this Notice of Appeal, Motion to Vacate and
7
or Set Aside, JCRCP 59, JCRCP 60, Motion for Reconsideration; Motion for Recusal; Motion For
8
Publication Of Transcript at Public Expense, Petition for In Forma Pauperis Status.
9

10
I wasi
11
ANALYSIS
12
13
INCORPORATE BY REFERENCE ALL LAW AND ASSERTIONS IN ATTACHED
PAPERS AND PLEADINGS AND WRITINGS IN EXHIBIT 1:
14
RMCR Rule 6: Continuances No continuance shall be granted, including a stipulated continuance,

15
16
except for good cause. A motion or stipulation for continuance must state the reason therefore and
17
whether or not any continuance has previously been sought or granted.
18
RMCR Rule 9: Appeals to District Court Except as otherwise provided in NRS 177.015 a
19
defendant in a criminal action tried before a Municipal Court Judge may appeal from the final
20
judgment therein to the Second Judicial District Court, at any time within 10 days from the date that
21
22
judgment is rendered. The right to counsel in trial courts was significantly expanded in another case when the Court,
in Argersinger v. Hamlin, extended the right to counsel to all misdemeanor state proceedings where there is a potential
23
loss of liberty. The defendant could have faced up to six months in jail for this offense under either said code or statue.
24
25 I do not mean to be disrespectful in contacting the court via email. I have been so
26
stamped out by the events of the last few months that its all I can do to try to protect
27
28
my rights to get information and media to the court in my attempts to access justice.
�
�
176
1
Veronica Lopez told me on the phone on Monday of this week that she would fax me a copy of the
�
2
Order and Contempt finding from the 11 30, 2011 Trial, yet I have not received any such fax. I have
�
3
not received any order in any form, not on my release from the 3 days summary incarceration, not
�
4
ever. The RMC confirmed there has been no Notice of Entry of any order in their docket or anything,
�
5
etc.
�
7
The RMC and Reno City Attorney improperly asserted jurisidction over this matter. It occurred on
8
Indian lands. The RSIC officers did not ascertain my race. There exists a question as to whether
9
jurisdiction was properly asserted by the RMC. Reno City Attorney wrote to me of approving of a
10
continuance, only to back out at Trial. Good cause was shown for a continuance and I showed up to
11
the first trial date, I was not brought into the court room. I do not believe, as such, any continuance
12
13
was ever granted previously. Further, the RMC failed to bring me into court on November 14th,
14
2011. Due to court personnel refusing to provide me a copy of the order or be up front with respect
15
to service, this filing is more haphazard than it would otherwise be.
16
I believe the following should be added to record and presents a strong argument for a
17
18
conflict of interest or other 60(b) basis for setting aside the verdict and contempt Order
19
in RMC 11 CR 22176 2I. I did not plead guilty in that case, and any RMC record that
20
21
suggests that is completely inaccurate. Please let me know if your records indicate I
22
plead guilty in that matter. Further, I have never been provided a copy of the Guilty
23
Verdict/Order in this matter, I requested on to be emailed to me and sent in the USPS

24
25 mail. Please serve me a copy of the order, preferably by email and USPS mail.
26
Further, the "RMC's official court transcriptionist" informed me yesterday that she
27
28
could not quote me or accept an money from me for the transcript on appeal. Further I
�
�
177
1
have been told by court staff that I would never be provided access to the audio
�
2
recording of the Trial of 11 30, 2011. I believe I have a right to it, and need it on an
�
3
4
exigent basis in connection with the various motions I have, will, or intend to to file
�
5
challenging the decision in this case. The RMC filing office informed me there has
�
6
been no Notice of Entry of Order in this matter at this point.

�
7
The Reno City Attorney has a vested interest in getting a conviction in RMC 11 CR
10
22176 2I with respect to anticipated litigation in connection with the wrongful arrest
11
12
and police misconduct shown in the videos below, as such a NRCP 60(b) basis exists
13
for setting aside any verdict entered in RMC 11 CR 22176 2I:

14
15 I ask that all the videos at the youtube account linked to below be added to the record
16
and considered.http://youtu.be/5PR7q4OI5b0
17
http://www.youtube.com/user/anonymousprivacy?feature=watch
18
19
20
21
22
prosecutorial misconduct (such as the D.A. withholding "exculpatory" evidence that could’ve helped my defense)
23
24
judicial errors (such as the judge permitting evidence that should’ve been excluded or vice versa)
25
erroneous application of a law or regulation improper jury instructions
26
27
ineffective assistance of counsel or other malpractice the evidence did not prove your guilt beyond a reasonable doubt
I went to the filing office at the RMC a couple times recently, including today, and sent in another written request seeking
28
an audio tape of the Trial in RMC 11 CR 22176 IC 110627 RSIC but was told by a Clerk that I would need to pay for
�
�
178
1
the entire Trial to be transcribed, and only then would I be allowed to read it, and that I would not be allowed to access
the audio of the hearing? Is this correct? I need to have the audio of the Trial to finish my Rule 59, 60, and Motion for
2
Reconsideration Motions....I will pay for the audio. I have received many audio cd/dvd's from both Reno Justice Court
and Washoe District Court, and it was announced in court that the trial was being audio recorded, as such, I hope you will
3
afford me a copy. Today, I called the RMC and spoke with Veronica, who sounded very angry with me and dismissive. I
was summarily sentenced to 3 days in jail at the end of the trial in this matter, even where I had been denied my Sixth
4
Amendment Right To Counsel, after a Contempt committed in the court's presence finding was announced, in addition to
a guilty verdict in the underlying action. Veronica informed me that she was at the trial and that the RMC had failed to
5 mail me or otherwise serve me with a copy of the written Order, either for the guilty conviction in the underlying case or
the contempt order. I was forced into handcuffs so quickly ater Judge Howard concluded issuing his oral ruling that I was
6
not even able to save my notes on my computer, it was literally apparently that exigent a situation to handcuff me....Then
a few Marshalls place some pieces of paper in front of me and demanded I sign them, and became angry, like Veronica
7
and like Marshall Monte, I believe, was at the arraingment, when I asked a simple question related to due process,
something many at the RMC do not seem all that enamored with. I asked if I could even read the papers they were
8
demanding I sign right then and there. The curtly and loudly said no, then dragged me away before I could read the
papers, much less sign them. Veronica snarled at me that that was all the service of the Order of Contempt and Guilty
9
Verdict that I would get, but that she might fax it to me, however, no fax has arrived, despite my illustrating the
exigencies of receiving the Order in preparing my Relief From Judgment Motions. Veronica continue to curtly refuse to
10 provide me any copy of any of the previously filed Orders of the Court unless I paid for them, despite my apparently not
having been provided a copy of such orders in the first place. I have no idea what those papers were (they certainly were
11
not in the property given to me upon my release from jail) and have received nothing in the mail, despite updating the
RMC with my new address of: 817 N. Virginia St. #2, Reno NV 89501 and filing an official Change of Address with the
12
USPS shortly after I was summarily evicted (despite there being only a No Cause Summary Eviction notice against my
commercial lease, something entirely probibited against under NRS 40.253. Not only was I denied my Sixth Amendment
13
Right to Counsel where jail time was a possibility (and where, I, in fact was jailed, immediately). I was denied a
continuance in this matter despite a written assent to one by Reno City Attorney Pam Roberts and despite the fact that the
14
Reno City Attorney was given one by my supposed appointed counsel Lew Taitel (whom is "associated with"
( http://www.nevcs.com/attorney.html ) an entity that I happen to be suing Nevada Court Services, incident to the same
15 eviction proceeding for which Mr. Taitel did grant, and the RMC did grant, a continuance in the other RMC case against
me, the trespass action that was set for trial on December 13th, because Richard G. Hill, who I am also suing in
16
connection with the wrongful eviction against, was going to be on vacation and the RMC apparently found that a good
reason for a continuance, compared to the RMC feeling my being eviction on or around November 13th, then wrongfully
17
arrested in connection with the eviction, under a trespass charge, and incarcerated for a number of days, all while Richard
Hill applied an unlawful rent distraint upon many exculpatory materials that would speak to a stated and express
18
retaliatory motive on the part of Walmart and the RSIC, and other exculpatory materials being wrongfully withheld under
an unlawful rent distraint by Richard G. Hill, Esq., the same person Mr. Taitel, the Reno City Attorney, and the RMC
19
decided deserved such sanctity applied to his monthlong vacation from Thanksgiving to New Year's to grant a
continuance, with no input from me.
20 FAILURE TO AFFORD SIXTH AMENDMENT RIGHT TO COUNSEL OR GRANT DEMAND FOR JURY TRIAL;
another DEMAND FOR JURY TRIAL HEREBY MADE IN EVENT OF NEW TRIAL, SIMILARLY REQUEST FOR
21
IN FORMA PAUPERIS STATUS HEREBY MADE AND SUPPORTED BY ATTACHED IFP PETITION
22
Custom Digest - 10 Headnotes
23
Rudin v. State, 86 P.3d 572
110 CRIMINAL LAW
24
110XXI Motions for New Trial

25
110k911 k. Discretion of court as to new trial.
26
Nev.,2004
27
Trial court exercises discretion when considering a motion for new trial.
28
Mortensen v. State, 986 P.2d 1105
179
1
Nev.,1999
2
Grant or denial of a new trial based on newly discovered evidence is within the discretion of
the trial court and will not be reversed on appeal absent an abuse of that discretion.
3
Rippo v. State, 946 P.2d 1017

4
Nev.,1997
5
Whether to grant or deny motion for new trial is within trial court's discretion.
6
Domingues v. State, 917 P.2d 1364
7
Nev.,1996
8
Decision to grant or deny motion for new trial rests within sound discretion of trial court and
will not be disturbed on appeal absent palpable abuse.
9
State v. Carroll, 860 P.2d 179

10
Nev.,1993
11
Generally, district court enjoys discretion in granting or denying motions for new trials.
12
State v. Sorenson, 315 P.2d 508
13
Nev.,1957
14
The discretion to set aside a judgment or to grant a new trial, after conviction, on ground of
error which has resulted in a miscarriage of justice or has actually prejudiced the defendant in
15
respect to a substantial right, is vested in the trial court after its examination of the entire case.
16
N.R.S. 169.110.
17
State v. Varga, 205 P.2d 803

18
Nev.,1949
19
In prosecution for homicide, denial of defendant's motion for new trial was within sound discretion
20 of the court and was justified in view of the evidence produced at the trial.
N.C.L.1929, § 11032, as amended.
21
State v. St. Clair, 16 Nev. 207

22
Nev.,1881
23
The grant or refusal of a new trial for misconduct of jurors is discretionary.

24
State v. Salge, 2 Nev. 321
25 Nev.,1866
26
Motion for new trial is addressed to trial court's sound discretion.
27

28
Rippo v. State, 946 P.2d 1017

180
1
110 CRIMINAL LAW
2
110 913 Grounds for New Trial in General
3
110k913(1) k. In general.
4
Nev.,1997
5
Criminal defendant's unsupported allegation that he learned after trial that trial judge had relationship
6
with business partner of victim did not support finding that judge abused his discretion
7
in refusing to disqualify himself; accordingly, defendant was not entitled to new trial.
8
Code of Jud.Conduct, Canon 3 comment.
State v. Walker, 857 P.2d 1
9
Nev.,1993
10
Under Nevada law as it existed prior to effective date of statute permitting entry of judgment
11
of acquittal if evidence is insufficient to support conviction, district judge could grant new trial
12
following return of guilty verdict where he or she disagreed with jury's resolution of conflicting
13
evidence, but not where there was insufficient evidence to support guilty verdict.
14
N.R.S. 175.381 , 176.515 ; U.S.C.A. Const.Amend. 5 .
Hatten v. State, 435 P.2d 495
15
Nev.,1967
16
Appearance of newspaper article after defendants filed motion for new trial wherein mention
17
was made of defendants' request to discharge their attorney and wherein it was reported that
18
sheriff had said that he had not seen any signs of withdrawal by one defendant from narcotics
19
or alcoholism did not entitle defendants to new trial. N.R.S. 175.535.
20 References
INCOMPETENT PRINCIPALS, COMPETENT THIRD PARTIES, AND THE LAW OF
21
AGENCY 61 Indiana Law Journal 115 (1986)

22
23

24
Laney v. State, 466 P.2d 666
25 110 CRIMINAL LAW
26
110k915 k. Defects in indictment or information as ground for new trial.
27
Nev.,1970
28
Judgment will not be set aside or new trial granted in criminal case unless accused is able to
181
1
affirmatively demonstrate that information is so insufficient that it results in miscarriage of
2
justice or actually prejudices him in respect to a substantial right. N.R.S. 173.075 .
Garden v. State, 318 P.2d 652
3
Nev.,1957
4
In prosecution for statutory rape of 12 year old girl, although evidence fixed date of crime as
5
May 21 rather than May 20 as charged in the information, variance was not material and was
6
not ground for new trial where no attempt had been made to show newly discovered evidence.
7
8
George v. State, 127 P.3d 1055
9
110 CRIMINAL LAW

10
11
110 918 Errors and Irregularities in Conduct of Trial

12
13
Nev.,2006
14
Indigent defendant was entitled to transcripts of trial for purposes of direct appeal from multiple
convictions for sexual assault and lewdness with minor, and therefore, destruction of
15
transcripts and trial evidence by State necessitated new trial.
16
Domingues v. State, 917 P.2d 1364

17
Nev.,1996
18
Trial court's denial of defendant's motion for new trial which was based on remarks made by
19
defendant's girlfriend during trial that defendant had eluded law enforcement in the past did
20 not constitute abuse of discretion; statements were spontaneously uttered and there was no bad
faith on part of prosecution regarding their elicitation, and admission of statements was harmless
21
beyond reasonable doubt in light of other admissible evidence that defendant had several
22
previous encounters with law enforcement officials.

23
Lopez v. State, 769 P.2d 1276

24
Nev.,1989
25 Absence of trial transcript for one day of trial due to malfeasance of court reporter did not
26
warrant new trial where testimony of six witnesses who testified that day was reconstructed
through combination of notes taken by two state trial counsel and was accepted by trial court
27
as fair representation of witnesses' testimony. Rules App.Proc., Rule 10(c) .

28
182
1
2
Ouanbengboune v. State, 220 P.3d 1122
110 CRIMINAL LAW
3

4

5
110k918(2) k. Irregularities affecting witnesses.
6
Nev.,2009
7
A non-English-speaking defendant who discovers interpreter inaccuracies in the translation of
8
trial testimony may file a post-trial motion to challenge the alleged inaccuracies made by the
court-appointed interpreter; if there is a challenge to the interpreter's translation of the trial
9
testimony, the challenging party should either move for a new trial, if the translation inaccuracies
10
are discovered within the applicable time frame, or, in the alternative, move to modify
11
or correct the trial record on appeal. West's NRSA 176.515 ; Rules App.Proc., Rule 10(c) .
12
13
Nev.,2009
14
As first of three steps involved on a non-English-speaking defendant's motion for new trial
based on alleged inaccuracies of his translated trial testimony, each party should have its own
15
interpreter review the translated testimony for discrepancies; if discrepancies exist, the defendant
16
has the burden of demonstrating the inaccuracy of the translated testimony and that it
17
fundamentally altered the substance of his actual testimony. West's NRSA 176.515 .
18
19
Nev.,2009
20 As second of three steps involved on a non-English-speaking defendant's motion for new trial
based on alleged inaccuracies of his translated trial testimony, the district court should appoint
21
an independent and, if available, certified court interpreter to review the translations; to determine
22
whether the defendant has met his burden of demonstrating the inaccuracy of the
23
translated testimony, the district court must consider the disputed versions of the testimony to
24
determine whether the alleged inaccuracies or omissions fundamentally altered the context of
25 the defendant's testimony and whether the inaccuracies prejudiced the defendant such that a
26
new trial is warranted. West's NRSA 176.515 .
References
27
Condition interfering with accused's view of witness as violation of right of confrontation 19

28
American Law Reports 4th 1286 (1983)

183
1
2
Walker v. State, 594 P.2d 710
3
110 CRIMINAL LAW

4

5
6
110k918(3) k. Summoning, impaneling, and oath of jury.
7
Nev.,1979
8
Determination of what result should follow failure of a juror to answer fully a question touching
upon his qualifications turns upon whether he was guilty of an intentional concealment.
9
10
11
Kinna v. State, 447 P.2d 32

12
110 CRIMINAL LAW
13
14
110k918(5) k. Remarks by judge.
15
Nev.,1968
16
Harassment of counsel, prejudicial to his client, may require new trial.

17
References
18
Gestures, facial expressions, or other nonverbal communication of trial judge in criminal case
19
as ground for relief 45 American Law Reports 5th 531 (1997)
20
21
State v. Hartley, 40 P. 372

22
110 CRIMINAL LAW

23

24
25 110k918(9) k. Absence of defendant or counsel.
26
Nev.,1895
Where the court permits the jury, on request of defendant, to view the premises where the
27
homicide is alleged to have occurred, the absence of defendant during the view by the jury is
28
no ground for new trial, if defendant made no request to be present.

184
1
2
Steese v. State, 960 P.2d 321
3
110 CRIMINAL LAW

4

5
110 919 Misconduct of Counsel for Prosecution
6
7
Nev.,1998
8
Requirement that new trial be granted when witness intimidation by a prosecutor results in a
denial of the defendant's due process right to a fair trial applies with equal force to cases
9
where a prosecutor attempts to dissuade a witness from testifying by misrepresenting the facts
10
of the case. U.S.C.A. Const.Amend. 14 .
11
Roever v. State, 901 P.2d 145

12
Nev.,1995
13
Having found discovery violations by state, trial court was required to determine whether
14
state's failure to provide or advise defendant as to existence of copies or transcripts of tape recorded
conversations with defendant that it had in its possession and that were potentially exculpatory
15
prejudiced defendant's right to fair trial on first-degree murder and marijuana possession
16
charges, so as to require new trial.

17
Hanley v. Sheriff of Clark County, 460 P.2d 162

18
Nev.,1969
19
Instruction by prosecutor to his witness to withhold significant evidence favorable to accused
20 requires setting aside of verdict.
21

22
State v. Carroll, 860 P.2d 179

23
110 CRIMINAL LAW

24
25 110 919 Misconduct of Counsel for Prosecution
26
110k919(2) k. In examination of witnesses.
Nev.,1993
27
Although prosecutor's references to defendant's in-custody status during prosecutor's

28
crossexamination
185
1
of defense witnesses were wholly inappropriate, especially in light of district
2
court's grant of motion in limine ordering state not to refer to defendant's pretrial incarceration,
trial court abused its discretion in granting new trial to defendant, convicted of lewdness
3
with a minor, since evidence of defendant's guilt was overwhelming; child did not waiver
4
from her allegations during direct or cross-examination, defendant had spent several years in
5
prison for molesting seven-year-old girl, defendant admitted, during police interview, that he
6
watched nine and ten-year-old girls because he found them sexually attractive, and defendant's
7
former co-worker testified that defendant commented about sexual attractiveness of young
8
girls.
References
9
Prejudicial effect of statement by prosecutor that verdict, recommendation of punishment, or

10
other finding by jury is subject to review or correction by other authorities 10 American Law
11
Reports 5th 700 (1993)

12
13
14
State v. Green, 400 P.2d 766
110 CRIMINAL LAW
15
16

17
110k919(3) k. In argument in general.

18
Nev.,1965
19
Statement of prosecutor to jury that they might infer guilt of robbery from fact that defendant
20 had $95, about one-half of proceeds of robbery, in his possession immediately after crime did
not warrant new trial.
21

22
Nev.,1965
23
Argument of district attorney that testimony of state's witnesses had not been contradicted was
24
not ground for new trial as amounting to statement that defendant could have brought in witnesses
25 but did not.
26
State v. Orr, 122 P. 73
Nev.,1912
27
The remarks of a district attorney in his argument that defendant lived with a prostitute, when
28
not justified by the evidence, held ground for a new trial.

186
1
References
�
2
�
other finding by jury is subject to review or correction by other authorities 10 American Law
�
3

�
4
5
�
6
State v. Jukich, 242 P. 590
�
7
110 CRIMINAL LAW
�
8
�
110k920 k. Incompetency or neglect of counsel for defense.
�
9
Nev.,1926
�
10
New trial should not be granted for incompetency or neglect of accused's counsel, unless accused
�
11
is prejudiced and deprived of fair trial.

�
12
References
�
13
Modern status of rule as to test in federal court of effective representation by counsel 26
�
14
American Law Reports, Federal 218 (1976)
�
Modern status of rules and standards in state courts as to adequacy of defense counsel's
�
15
representation
�
16
of criminal client 2 American Law Reports 4th 27 (1980)
�
17
18
�
Harvey v. State, 375 P.2d 225
�
19
110 CRIMINAL LAW

�
20
�
21
110 922 Instructions and Failure or Refusal to Instruct

�
22
110k922(7) k. Objections and exceptions at trial.
�
23
Nev.,1962
�
24
New trial is warranted if jury is misled by conflicting instructions.
�
25
�
26
Meyer v. State, 80 P.3d 447

�
27
110 CRIMINAL LAW

�
28
�
�
�
187
1
110 923 Competency of Jurors and Challenges
2
110k923(2) k. Previous opinion, prejudice, or declaration.
Nev.,2003
3
Jurors who fail to disclose information or give false information during voir dire commit juror
4
misconduct, which, if discovered after the verdict, may be grounds for a new trial under the
5
standards established for juror misconduct.
6
Echavarria v. State, 839 P.2d 589
7
Nev.,1992
8
Finding that juror had not intentionally concealed his prior involvement as victim of assault
was not abuse of discretion, so that defendant was not entitled to new trial on ground of juror
9
misconduct, where juror indicated that he considered prior incident, not as assault, but as fight
10
between himself and other participants.
11
Hall v. State, 513 P.2d 1244

12
Nev.,1973
13
That home of one of jurors was burglarized during first day of trial of burglary case and that
14
such fact had been communicated to another juror did not entitle accused to new trial, absent
showing of prejudice on part of any juror. N.R.S. 16.050 , 16.050 , subd. 1(g), 16.060,
15
175.071, 175.121, subd. 4.
16
State v. Marks, 15 Nev. 33

17
Nev.,1880
18
It is no ground for a new trial that, after a verdict of guilty, the accused ascertains that a juror,
19
before the impaneling, had formed and expressed an opinion of guilt.
20
21
State v. Harvey, 148 P.2d 820

22
110 CRIMINAL LAW

23

24
110 923 Competency of Jurors and Challenges
25 110k923(9) k. Necessity of objections at trial.
26
Nev.,1944
Objection to competency of a juror cannot be taken by accused for first time after verdict and
27
relied upon as ground of motion for new trial. Comp.Laws, §§ 10940, 11032.
28
State v. Harvey, 148 P.2d 820

188
1
Nev.,1944
2
Where accused for first time in his motion for new trial challenged juror because of previous
conviction of felony, motion for new trial was properly denied, since challenge was not timely
3
made, notwithstanding that such fact was not known to accused until after verdict, where juror
4
did not endeavor to conceal disqualification. Comp.Laws, §§ 10940, 11032.

5
State v. Anderson, 4 Nev. 265
6
Nev.,1868
7
If defendant accepts a juror without objection, whom he knows or might have known to have
8
formed and expressed an unqualified opinion as to his guilt, he cannot, after verdict, raise an
objection on that account.
9
10
11
Zana v. State, 216 P.3d 244

12
110 CRIMINAL LAW
13
14
110 924 Misconduct of or Affecting Jurors
110 925 In General
15
16
Nev.,2009
17
To justify a new trial on the ground of juror misconduct, a defendant must, through admissible
18
evidence, demonstrate the nature of the juror misconduct and that there is a reasonable probability
19
that it affected the verdict.
20 Valdez v. State, 196 P.3d 465

Nev.,2008
21
A new trial must be granted due to intrinsic juror misconduct unless it appears, beyond a reasonable
22
doubt, that no prejudice has resulted from the jury misconduct.

23

24
Nev.,2003
25 Not every incidence of juror misconduct requires the granting of a motion for a new trial,
26
since each case turns on its own facts, and on the degree and pervasiveness of the prejudicial
influence possibly resulting.
27

28
Nev.,2003
189
1
Once a defendant has established occurrence of juror misconduct and a showing that the misconduct
2
was prejudicial, the trial court should grant a motion for new trial; prejudice is shown
whenever there is a reasonable probability or likelihood that the juror misconduct affected the
3
verdict.
4

�
5
Nev.,2003
6
The factors used to determine whether there is a reasonable probability that juror misconduct
7
affected a verdict are instructive only and not dispositive.
8
�
Nev.,2003
9
The district court, for purposes of a claim of juror misconduct, must determine whether the
10
average, hypothetical juror would be influenced by the juror misconduct.
11
Hernandez v. State, 50 P.3d 1100

�
12
Nev.,2002
13
Not every incidence of juror misconduct requires a new trial; if it appears beyond a reasonable
14
doubt that no prejudice occurred, a new trial is unnecessary.
Tanksley v. State, 946 P.2d 148
�
15
Nev.,1997
16
Not every incidence of juror misconduct requires grant of new trial; new trial need not be
17
granted if it appears beyond reasonable doubt that no prejudice occurred.

18
White v. State, 926 P.2d 291
�
19
Nev.,1996
20 Remarks reportedly made by juror during penalty deliberations, likening defendant to a

“gorilla, a baboon, a native tribesman,” did not require that jury's verdict in guilt phase be set
21
aside.
22

�
23
Nev.,1995
24
Not every incidence of contact between jurors and witnesses requires granting of motion for
25 new trial.
26
Lane v. State, 881 P.2d 1358
�
Nev.,1994
27
Not every incidence of jury misconduct requires granting of motion for new trial.
28
Lane v. State, 881 P.2d 1358

�
�
�
190
1
Nev.,1994
2
New trial on ground of juror misconduct must be granted unless it appears beyond reasonable
doubt that no prejudice has resulted and it is for trial court to determine in the first instance
3
whether juror misconduct has resulted in prejudice to litigant and its judgment thereon will
4
not be overturned unless abuse of discretion is manifest.

5
6
Nev.,1989
7
Failure of jurors in prosecution for murder by torture of four-year-old stepdaughter to disclose
8
on voir dire that they had been abused as children did not constitute misconduct warranting
new trial where there was no intentional concealment, despite contention that jurors would not
9
accept as correct defense theory that child's mother, as abused child herself, became abuser of
10
the victim.
11
Hui v. State, 738 P.2d 892

12
Nev.,1987
13
Not every instance of juror misconduct requires granting motion for new trial of criminal
14
charges.
State v. Thacker, 596 P.2d 508
15
Nev.,1979
16
A motion for new trial may be premised on juror misconduct where such misconduct is readily
17
ascertainable from objective facts and overt conduct without regard to the state of mind
18
and mental processes of any juror.
19
Barker v. State, 594 P.2d 719
20 Nev.,1979
Not every incident of jury misconduct requires granting of a motion for new trial.
21
Lewis v. State, 588 P.2d 541

22
Nev.,1978
23
Defendants were not entitled to a new trial because three jurors discussed the testimony and
24
evidence adduced at trial before the case had been submitted to them for deliberation, where
25 the three jurors, at hearing on new trial motion, testified that his or her decision was based
26
solely on the evidence presented at trial, and where the record failed to indicate that a discussion
either affected the jurors' deliberations or otherwise prejudiced defendants' right to a fair
27
trial.
28
Parsons v. State, 329 P.2d 1070

17 SUPPLEMENTAL TO Notice
of Appeal, Motion to Vacate and or Set Aside, JCRCP 59, JCRCP 60,
191
1
Nev.,1958
2
In murder prosecution, where no objection was made during trial and jury was duly cautioned
by court not to separate, nor to allow any person to talk to them about case, fact that deputy
3
sheriff had not been administered official oath for his care of jury during adjournment for
4
meals, or until night case was committed to jury, did not obligate court to set aside verdict and
5
grant new trial as matter of law.
6
7
8
Murray v. State, 2009 WL 3190366
110 CRIMINAL LAW
9

10
11
110 925 5 Considering Matters Not in Evidence

12
110k925.5(1) k. In general.
13
Nev.,2009
14
Defendant was not entitled to new trial in prosecution for attempted murder with the use of a
deadly weapon and discharging a weapon at a vehicle based on alleged jury misconduct; juror's
15
unique purported knowledge, as to fact that incident was allegedly gang related event, did
16
not constitute juror misconduct.

17
Rowbottom v. State, 779 P.2d 934

18
Nev.,1989
19
Juror misconduct in first-degree murder trial, in which juror conducted independent investigation
20 to determine whether victim could have exited vehicle with her hands bound as defendant
claimed, measured driving times between various locations to determine whether defendant at
21
one point could have returned to his apartment, visited murder scene and compared gravel
22
there with that depicted in pictures of victim's body, and engaged in communication with victim's
23
parents, was prejudicial error which entitled defendant to new trial, even though juror allegedly
24
did not share her findings with other jurors until penalty phase of trial.
25
26
Rowbottom v. State, 779 P.2d 934
27
110 CRIMINAL LAW

28

192
1
�
2
�
110k925.5(2) k. Visiting or viewing place of crime.
�
3
Nev.,1989
�
4
Juror misconduct in first-degree murder trial, in which juror conducted independent investigation
�
5
to determine whether victim could have exited vehicle with her hands bound as defendant
�
6
claimed, measured driving times between various locations to determine whether defendant at
�
7
one point could have returned to his apartment, visited murder scene and compared gravel
�
8
there with that depicted in pictures of victim's body, and engaged in communication with victim's
�
parents, was prejudicial error which entitled defendant to new trial, even though juror allegedly
�
9
did not share her findings with other jurors until penalty phase of trial.
�
10
Pendleton v. State, 734 P.2d 693
�
11
Nev.,1987
�
12
Juror's act of visiting accident scene some 17 months after accident, and relating her observations
�
13
that defendant's theory, that rough road and poor conditions of truck would have resulted
�
14
in accident regardless of whether defendant was drinking, was unbelievable, constituted juror
�
misconduct, inasmuch as juror essentially became witness for prosecution not subject to
�
15
crossexamination
16
regarding weather and road conditions, and thus new trial for defendant convicted
17
of felony driving while under influence was warranted.
18

�
19
Bushnell v. State, 599 P.2d 1038

�
20
110 CRIMINAL LAW
�
21

�
22
�
23
�
24
110k925.5(3) k. Statements by jurors during deliberation.
�
Nev.,1979
�
25
Where, during deliberations and in response to jurors' questions, judge sent note to foreman
�
26
explaining that jury was confined to record and instructions given and that it would be improper
�
27
for court to advise jurors on matters of evidence or testimony, if, as alleged, the foreman
�
28
read note silently and then informed other jurors that judge's answer was that, if defendant
�
�
�
193
1
was present during robbery, he should be convicted, defendant would be entitled to new
2
trial, unless it appeared beyond reasonable doubt that no prejudice resulted. N.R.S. 48.025 ,
50.065 , subd. 2.
3

4
Nev.,1979
5
Denying motion for new trial based on juror misconduct was not error, notwithstanding that
6
juror remarked during deliberations that he had been involved in a situation where robbers had
7
ordered him to lie on floor, where juror had not intentionally concealed a material fact relating
8
to his qualifications, but had given truthful responses on voir dire, and where statement attributed
to juror during deliberations did not improperly influence jury or taint its verdict.
9
10
11
Sollars v. State, 319 P.2d 139

12
110 CRIMINAL LAW
13
14
15
110k925.5(4) k. Access to or reading newspapers.
16
Nev.,1957
17
In murder prosecution, where prejudice resulted from the action of the trial court upon the
18
ground of prejudicial newspaper coverage at the trial, it was a proper subject of motion for
19
new trial, and a motion for mistrial was not a necessary prerequisite.
20 State v. Anderson, 4 Nev. 265

Nev.,1868
21
During the progress of a murder trial, and while the court had taken a recess, the jury were in
22
the court house in charge of the sheriff, and one of the jurymen, standing near a window, saw
23
a newspaper in the hands of a person near the window on the outside of the court house, and
24
asked him for it. The party addressed handed up the paper to the juror saying no more than
25 “You are welcome.” The juror glanced over the paper and then handed it back. Held, that this
26
was not such misconduct in the juror as would entitle defendant to a new trial.
27

28
State v. Jones, 7 Nev. 408

194
1
110 CRIMINAL LAW
�
2
�
�
3
110k926 k. Use of intoxicating liquors.

�
4
Nev.,1872
�
5
The use of intoxicating liquors by the jury, or a juror, is not ground for a new trial, in the absence
�
6
of any showing that injurious consequences resulted therefrom.
�
7
State v. Jones, 7 Nev. 408
�
8
Nev.,1872
�
A judge at nisi prius should never hesitate to set aside a verdict, in a criminal case, where
�
9
there is even a suspicion that any juror was in the least affected by intoxicating liquor during
�
10
the progress of the trial or the deliberation upon the verdict.
�
11
12
�
13
�
14
110 CRIMINAL LAW
�
�
15
�
16
110 927 Separation

�
17
�
18
Nev.,1958
�
19
Where state established that there was no tampering with or misconduct on part of juror, separation
�
20 of jurors during murder trial was not sufficient ground for new trial.
�
�
21
Nev.,1957
�
22
Fact of communication to a jury which has been permitted to separate should be brought to the
�
23
attention of the trial court through appropriate motion for relief.

�
24
25 Custom Digest - 2 Headnotes
26
State v. Harris, 12 Nev. 414
�
110 CRIMINAL LAW
27

28

�
�
�
195
1
110 927 Separation
2
110k927(2) k. Separation after submission of case.
Nev.,1877
3
The mere fact that a juror was temporarily separated from the jury during their deliberations is
4
not ground for a new trial if defendant could not have been prejudiced thereby.
5
6
7
8
110 CRIMINAL LAW
9

10
110 927 Separation
11
110k927(5) k. Presumptions and burden of proof as to effect of separation.

12
Nev.,1958
13
If jury in murder case is allowed to separate under conditions indicating possibility of improper
14
communication, burden is upon state to show that such separation was not prejudicial.
15
Nev.,1957
16
No prejudice could result or be presumed from separation of jury in a murder prosecution in

17
the absence of a communication.

18
19
20 Roever v. State, 901 P.2d 145

110 CRIMINAL LAW
21

22

23
110k928 k. Communications by or with jurors.

24
Nev.,1995
25 New trial was required on first-degree murder and marijuana possession charges as result of
26
contact between jurors and prosecution witness, in light of district court's finding that it could
not be said with any degree of certainty that contacts had no effect on verdicts.
27

28
Nev.,1995
196
1
New trial must be granted based upon contact between jurors and witnesses, unless it appears,
2
beyond reasonable doubt, that no prejudice has resulted.
3
Nev.,1995
4
In determining whether contact between jurors and witnesses warrants new trial, the trial court
5
determines whether litigant has been prejudiced, and its judgment will not be overturned unless
6
abuse of discretion is manifest.
7
References
8
Stranger's alleged communications with juror, other than threat of violence, as prejudicial in
federal criminal prosecution 131 American Law Reports, Federal 465 (1996)
9
Threats of violence against juror in criminal trial as ground for mistrial or dismissal of juror 3
10
American Law Reports 5th 963 (1992)
11
12
13
State v. Larkin, 11 Nev. 314
14
110 CRIMINAL LAW
15
16
110k930 k. Misconduct of bystanders.

17
Nev.,1876
18
That the audience in the court room once commenced to applaud the district attorney, which
19
the presiding judge promptly suppressed, is not a ground for reversing a conviction, no prejudice
20 being shown.
21

22

23
110 CRIMINAL LAW

24
25 110 924 Misconduct of or Affecting Jurors
26
110k931 k. Necessity of objection at trial.
Nev.,1957
27
In murder prosecution, where prejudice resulted from the action of the trial court upon the
28
ground of prejudicial newspaper coverage at the trial, it was a proper subject of motion for
197
1
new trial, and a motion for mistrial was not a necessary prerequisite.
2

3
Jones v. State, 2010 WL 4514363

4
110 CRIMINAL LAW

5
6
7
110k932 k. Effect as to result.
8
Nev.,2010
Defendant convicted of burglary was not entitled to new trial after allegedly discovering juror's
9
vote to convict was influenced by overhearing police officer refer to defendant's criminal
10
history, where there was overwhelming evidence of defendant's guilt, and defendant failed to
11
demonstrate that juror in question was actually exposed to prejudicial extrinsic evidence.
12
West's NRSA 176.515 .
13
14
Nev.,1965
Statement of unidentified juror, after rendition of verdict and dismissal of jury, that “the dirty
15
nigger got what he deserved” was not “misconduct of jury”“tending to prevent fair and due
16
consideration of case” within statute providing for new trials in criminal cases. N.R.S.
17
175.535, subd. 3.See publication Words and Phrases for other judicial constructions and definitions.
18
19
20 Hargrove v. State, 686 P.2d 222

110 CRIMINAL LAW
21

22
110k933 k. Irregularities or defects in verdict as ground for new trial.

23
Nev.,1984
24
A defendant whose guilt is predicated upon a verdict may raise a postconviction challenge to
25 the verdict's validity by means of a motion for new trial, and has the right to appeal from an
26
order refusing such relief. N.R.S. 177.015 .
Isbell v. State, 626 P.2d 1274
27
Nev.,1981
28
After jury has given its verdicts, has been polled in open court and has been discharged, individual
198
1
juror's change of mind or claim that he was mistaken or unwilling to assent to verdict
2
comes too late and does not warrant granting of new trial.

4
Yowell v. State, 2010 WL 4537749

5
110 CRIMINAL LAW
6
7
110 935 Verdict Contrary to Evidence
8
110k935(1) k. Weight and sufficiency of evidence in general.
Nev.,2010
9
District court did not abuse its discretion by denying defendant's motion for new trial on basis
10
of conflicting evidence in prosecution for robbery with the use of a deadly weapon, kidnapping
11
in the first degree with the use of a deadly weapon, and sexual assault with the use of a
12
deadly weapon, although some of the evidence could have been conflicting; evidence was not
13
so at odds with the verdict that the totality of evidence failed to prove the defendant guilty
14
beyond a reasonable doubt.
Evans v. State, 926 P.2d 265
15
Nev.,1996
16
“Other grounds” for grant of new trial exist where trial judge finds that evidence of guilt is
17
conflicting, and after independent evaluation of evidence disagrees with jury's verdict of
18
guilty. N.R.S. 176.515 , subd. 4.See publication Words and Phrases for other judicial constructions
19
and definitions.
20 Evans v. State, 926 P.2d 265

Nev.,1996
21
Conflict of evidence warranting grant of new trial occurs where there is sufficient evidence
22
presented at trial which, if believed, would sustain conviction, but evidence is contested and
23
district judge, in resolving conflicting evidence differently from jury, believes totality of evidence
24
fails to prove defendant guilty beyond a reasonable doubt. N.R.S. 176.515 , subd. 4.
25 Evans v. State, 926 P.2d 265
26
Nev.,1996
District court lacks authority to grant new trial based on insufficiency of evidence, and when
27
there is truly insufficient evidence to convict, defendant must be acquitted. N.R.S. 176.515 ,
28
subd. 4.
199
1
State v. Purcell, 887 P.2d 276
2
Nev.,1994
There was conflict in the evidence so as to permit trial court to grant new trial to defendant
3
convicted on charges of lewdness with minor and sexual assault where victim's testimony was
4
state's only evidence and the defense, on cross-examination, brought out inconsistencies in
5
victim's testimony, put on its own witnesses to testify about victim's untruthfulness and her
6
motivation to lie about defendant with whom she and her mother lived so that victim could go
7
live with her father, and introduced evidence showing lack of opportunity for defendant to
8
have committed crimes at time and in manner that victim described. N.R.S. 176.515 .
9
Nev.,1994
10
Totality of the evidence evaluation is standard for district court to use in deciding whether to
11
grant new trial based on independent evaluation of conflicting evidence. N.R.S. 176.515 .
12
13
Nev.,1994
14
In contrast to conflicting evidence as basis for granting new trial, insufficiency of the evidence
as basis for granting new trial occurs when prosecution has not produced minimum
15
threshold of evidence upon which conviction may be based, even if such evidence were believed
16
by jury. N.R.S. 176.515 .

17

18
Nev.,1994
19
Under amended statute stating that court may set aside verdict and enter judgment of acquittal
20 if evidence is insufficient to sustain conviction, district court may not grant new trial based on
finding that there is insufficient evidence to support jury verdict; if there is truly insufficient
21
evidence, defendant must be acquitted. N.R.S. 175.381 .

22

23
Nev.,1994
24
Although district court termed evidence “insufficient,” thorough reading of its decision revealed
25 that district court did not find evidence insufficient as a matter of law to support verdict,
26
but instead found that it was conflicting and that verdict was not based on substantial
evidence and thus, district court's order granting new trial was proper. N.R.S. 176.515 .
27
State v. Walker, 857 P.2d 1

28
Nev.,1993
200
1
Under Nevada law as it existed prior to effective date of statute permitting entry of judgment
2
of acquittal if evidence is insufficient to support conviction, district judge could grant new trial
following return of guilty verdict where he or she disagreed with jury's resolution of conflicting
3
evidence, but not where there was insufficient evidence to support guilty verdict.
4
N.R.S. 175.381 , 176.515 ; U.S.C.A. Const.Amend. 5 .

�
5
Washington v. State, 655 P.2d 531
�
6
Nev.,1982
�
7
Trial judge was not compelled by law to deny motion for new trial for insufficiency of evidence.
�
8
N.R.S. 176.515 , 176.515 , subds. 1, 3, 4.
�
Azbill v. State, 495 P.2d 1064
�
9
Nev.,1972
�
10
If there is substantial evidence to support a jury verdict, neither trial court nor Supreme Court
�
11
may disturb it.

�
12
State v. Lewis, 91 P.2d 820
�
13
Nev.,1939
�
14
In prosecution for involuntary manslaughter, where victim was struck by automobile driven
�
by defendant and evidence tended to show that defendant was guilty of several traffic law violations,
�
15
Supreme Court could not say that refusal of new trial was an abuse of trial court's
�
16
discretion.
�
17
18
19
20 110 CRIMINAL LAW

21
110 937 Newly Discovered Evidence

22
110 938 In General

23
24
Nev.,1999
25 Newly discovered evidence, that a State witness/police officer had explained his alleged behavior
26
in coercing a female arrestee to perform an illicit sex act by stating that he was “evil” or
an “evil man” did not warrant a new trial for a murder defendant who claimed that the witness
27
was the shooter, and that after the shooting the witness had described himself as “evil”; statement
28
had no connection to the circumstances of the murder, it neither exculpated defendant

201
1
nor inculpated witness, its admissibility was questionable, and the arrestee had changed her
2
story about her arrest several times.
3
Nev.,1999
4
To establish a claim for a new trial based on newly discovered evidence, the defendant must
5
show that the evidence is: newly discovered; material to the defense; such that even with the
6
exercise of reasonable diligence it could not have been discovered and produced for trial;
noncumulative;
7
such as to render a different result probable upon retrial; not only an attempt to
8
contradict, impeach, or discredit a former witness, unless the witness is so important that a
9
different result would be reasonably probable; and the best evidence the case admits.
10 Mortensen v. State, 986 P.2d 1105
11
Nev.,1999
12
Newly discovered evidence, that a third party/police officer had heard a State witness/police
officer refer to himself as “evil” did not warrant a new trial for a murder defendant who
13
claimed that the witness was the shooter, and that after the shooting the witness had described
14
himself as “evil”; statement had no connection to the circumstances of the murder, it neither
15
exculpated defendant nor inculpated witness, and its admissibility was questionable.
16
17
Nev.,1999
18
Newly discovered evidence, a letter and two notes written by the State's firearms expert, did
not justify a new trial in a murder prosecution; even if the letter showed that the expert
19
provided confusing testimony, introduction of the letter at a new trial would simply have been
20
an attempt to discredit the expert, and the notes, even if they indicated the possible existence
21
of another gun, would not have rendered a different result probable on retrial, as defendant
22
testified that his gun was the murder weapon.
23
24
Nev.,1999
Newly discovered evidence, the testimony of a police officer before a federal jury, stating that
25
an officer who was a State witness in defendant's murder trial “had mentioned several times
26
the fact about going and doing a drive-by or something like that nature,” did not warrant a
27
new trial, despite defendant's theory that the witness was the shooter; all of the eyewitnesses
28
testified that the passenger in a truck was the actual shooter, and it was undisputed that defendant
202
1
was the passenger, and it was undisputed that the murder weapon was defendant's offduty
�
2
gun.
�
Hennie v. State, 968 P.2d 761
�
3
Nev.,1998
�
4
Grant or denial of a new trial on the ground of newly discovered evidence is within the discretion
�
5
of the trial court. N.R.S. 176.515 .
�
6
�
7
Nev.,1998
�
8
General standard for a new trial based on newly discovered evidence is that: (1) the evidence
�
must be newly discovered; (2) it must be material to the defense; (3) it could not have been
�
9
discovered and produced for trial even with the exercise of reasonable diligence; (4) it must
�
10
not be cumulative; (5) it must indicate that a different result is probable on retrial; (6) it must
�
11
not simply be an attempt to contradict or discredit a former witness; and (7) it must be the best
�
12
evidence the case admits. N.R.S. 176.515 .
�
13
�
14
Nev.,1997
�
Grant or denial of new trial on ground of newly discovered evidence is within discretion of
�
15
trial court.
�
16

�
17
Nev.,1997
�
18
To establish basis for a new trial on ground of newly discovered evidence, the evidence must
�
19
be: newly discovered; material to the defense; such that even with the exercise of reasonable
�
20 diligence it could not have been discovered and produced for trial; non-cumulative; such as to
�
render a different result probable upon retrial; not only an attempt to contradict, impeach, or
�
21
discredit a former witness, unless the witness is so important that a different result would be
�
22
reasonably probable; and the best evidence the case admits.

�
23
Funches v. State, 944 P.2d 775

�
24
Nev.,1997
�
25 Grant or denial of new trial on basis of newly-discovered evidence is within trial court's discretion
�
26
and will not be reversed on appeal absent its abuse. N.R.S. 176.515 , subd. 1.
�
�
27
Nev.,1997
�
28
For new trial on basis of newly-discovered evidence, the evidence must be newly discovered;
�
�
�
203
1
material to defense; incapable of discovery and production even with exercise of reasonable
2
diligence; non-cumulative; capable of rendering different result probable upon retrial; more
than attempt to contradict, impeach, or discredit former witness, unless witness is so important
3
that different result would be reasonably probable; and the best evidence case admits. N.R.S.
4
176.515 , subd. 1.
5
Jones v. State, 837 P.2d 1349
6
Nev.,1992
7
Evidence that codefendant would have testified on defendant's behalf had police not coerced
8
his silence constituted newly discovered evidence on which defendant's motion for new trial
should have been granted. N.R.S. 176.515 , subd. 1.
9
Sanborn v. State, 812 P.2d 1279

10
Nev.,1991
11
Grant or denial of new trial on ground of newly discovered evidence is within trial court's discretion
12
and will not be reversed on appeal absent its abuse. N.R.S. 176.515 , subd. 1.
13
Sanborn v. State, 812 P.2d 1279
14
Nev.,1991
To establish basis for new trial on ground of newly discovered evidence, evidence must be:
15
newly discovered; material to the defense; such that even with the exercise of reasonable diligence
16
it could not have been discovered and produced for trial; noncumulative; such as to
17
render a different result probable upon retrial; not only an attempt to contradict, impeach, or
18
discredit a former witness, unless the witness is so important that a different result would be
19
reasonably probable; and the best evidence the case admits. N.R.S. 176.515 , subd. 1.
20 Young v. State, 737 P.2d 512

Nev.,1987
21
Denial of defendant's motion for new trial based on claim of newly discovered evidence about
22
alleged accomplice in murder was not abuse of discretion, where defendant knew of accomplice's
23
alleged involvement prior to trial, and evidence was not likely to produce different results
24
upon retrial.
25 McCabe v. State, 655 P.2d 536
26
Nev.,1982
In prosecution for murder, trial court did not err in refusing to grant defendant new trial on
27
basis of newly discovered evidence where evidence proffered by defendant did not satisfy
28
requirements
204
1
for new trial.
2
Cutler v. State, 596 P.2d 216
Nev.,1979
3
Testimony of defendant's companion was cumulative, partially inculpatory, and would not
4
cause jury to reach different result, and thus it was not abuse of discretion following conviction
5
for first-degree murder to deny defendant's motion for new trial based on alleged newly
6
discovered evidence.
7
McLemore v. State, 577 P.2d 871
8
Nev.,1978
For new trial on ground of newly discovered evidence, evidence must be newly discovered,
9
must be material to movant's defense, must be such that it could not with reasonable diligence
10
have been discovered and produced for trial, must not be cumulative, must be such as to
11
render different result probable upon retrial, must not attempt only to contradict former witness
12
or impeach or discredit him, unless such witness is so important that different result must
13
follow, and such facts must be shown by the best evidence the case admits.
14
Porter v. State, 576 P.2d 275
Nev.,1978
15
Where evidence proffered by defendant in support of new trial motion, even if material, was
16
not newly discovered but could have been presented at trial by the exercise of reasonable diligence
17
and where the evidence was cumulative and corroborative and not such as to render a
18
different result probable upon retrial, evidence did not require a new trial. N.R.S. 176.515 .
19
20 Nev.,1978
Where alleged newly discovered evidence, adduced in support of new trial motion, consisted
21
essentially of a purported polygraph examination in which a third party allegedly truthfully

22
admitted committing the robbery for which defendant was convicted and the affidavit of a
23
court-appointed investigator stating that the third party had admitted committing the robbery,
24
alleged newly discovered evidence did not meet guidelines for granting a new trial. N.R.S.
25 176.515 .
26
Nev.,1978
27
Whether to grant a new trial on grounds of newly discovered evidence is discretionary and tri-
28
al court's decision will not be reversed on appeal absent an abuse of discretion. N.R.S.
205
1
176.515 .
2
Lightford v. State, 538 P.2d 585
Nev.,1975
3
Granting a new trial in criminal cases on the ground of newly discovered evidence is largely
4
discretionary with the trial court and that court's determination will not be reversed on appeal
5
unless abuse of discretion is clearly shown.
6
7
Nev.,1975
8
To establish basis for new trial, newly discovered evidence must be newly discovered, material
to the defense, such that it could not, with reasonable diligence, have been discovered and
9
produced for trial, not cumulative, such as to render a different result probable upon retrial,
10
not based upon contradiction or impeachment of a former witness unless the witness impeached
11
is so important that a different result must follow, and the best evidence of which the
12
case admits.
13
14
Nev.,1975
Newly discovered evidence which showed that defendant, who was convicted of unlawful
15
possession of heroin, was merely furnished with an opportunity to commit the crime by husband
16
of person to whom defendant had furnished narcotics on at least five or six occasions did
17
not entitle defendant to new trial on ground of newly discovered evidence of entrapment.
18
Oliver v. State, 456 P.2d 431
19
Nev.,1969
20 To justify new trial, newly discovered evidence must be (1) newly discovered, (2) material to
defense, (3) such that it could not with reasonable diligence have been discovered and produced
21
for trial, (4) not cumulative, (5) such as to render different result probable on retrial,
22
and (6) not an attempt only to contradict former witness or impeach or discredit him, unless
23
witness impeached is so important that different result must follow. N.R.S. 176.515 .
24
25 Nev.,1969
26
Defendant in narcotics possession prosecution was not entitled to new trial on basis of testimony
by witness, who had pleaded guilty to same offense had not yet been sentenced, that
27
witness, for fear of jeopardizing his probation possibilities, had not testified but would have
28
testified that he had obtained heroin from third person, where third person testified on motion
206
1
that he had not given heroin to witness, since it was not shown that evidence could not have
2
been discovered with reasonable diligence and different result was not probable. N.R.S.
176.515 .
3

4
Nev.,1969
5
Defendant was not entitled to new trial in narcotics prosecution on ground that witness, who
6
had pleaded guilty to same offense but had not yet been sentenced, had been unwilling to give
7
exonerating testimony for fear of jeopardizing probation possibilities and had instead claimed
8
privilege, where defendant did not make effort to test correctness of witness's assertion of
privilege.
9
State v. Crockett, 444 P.2d 896

10
Nev.,1968
11
Trial court properly exercised its discretion granting a new trial on basis of newly discovered
12
evidence to defendant convicted of murder where after trial individual, who could not be
13
found by police during trial, revealed that he was the person seen leaving murder site with a
14
gun rather than defendant as witnesses had testified. N.R.S. 175.535, subd. 7.
Burton v. State, 437 P.2d 861
15
Nev.,1968
16
To satisfy statute allowing new trial on basis of newly discovered evidence there must be a
17
factual showing that newly discovered evidence could not have been obtained through diligence
18
prior to trial, and that it would have the probable effect of a different verdict on retrial.
19
N.R.S. 175.535.
20 Burton v. State, 437 P.2d 861

Nev.,1968
21
Defendant charged with robbery was not entitled to a new trial on grounds of newly discovered
22
evidence, which allegedly consisted of admission by codefendant which purported to

23
exculpate defendant, as well as an affidavit of defendant's attorney relating to circumstances

24
and time of discovery of the new evidence, since fact that codefendant was known before and
25 during trial to all other parties and their counsel as a source of evidence as to commission of
26
the robberies could not be refuted from the record. N.R.S. 175.535.
Pacheco v. State, 408 P.2d 715
27
Nev.,1965
28
Statute authorizing court to grant new trial on ground of newly discovered evidence requires
207
1
factual showing that evidence is newly discovered, material to defense and could not with
2
reasonable diligence have been discovered and procured for trial and conclusions will not suffice.
N.R.S. 175.535. subd. 7.
3

4
Nev.,1965
5
Motion for new trial on ground of newly discovered evidence calls for exercise of discretion
6
by trial court and, on review, inquiry is whether an abuse of discretion has occurred. N.R.S.
7
169.110, 175.535, subd. 7.
8
State v. McNeil, 4 P.2d 889
Nev.,1931
9
Motion for new trial for newly discovered evidence is addressed to court's discretion.
10
11

12
Servin v. State, 32 P.3d 1277
13
110 CRIMINAL LAW
14
15
110 938 In General
16
110k938(2) k. What constitutes newly discovered evidence in general.

17
Nev.,2001
18
Information in possession of one witness that an admitted accomplice in murder, who also
19
testified at defendant's trial, had confessed to the murder, was not newly discovered evidence
20 entitling defendant to new trial, despite defendant's contention that accomplice's testimony
was so crucial that his impeachment would have necessitated different verdict, and that he had
21
been precluded from subpoenaing witness to testify, where state disclosed accomplice's admission
22
to witness nearly nine months prior to trial. N.R.S. 176.515 .

23
Biondi v. State, 699 P.2d 1062

24
Nev.,1985
25 Affidavit from codefendant stating that he alone stabbed victim and that he had lied at trial
26
when he disclaimed any responsibility for the killing did not constitute “newly discovered
evidence” or evidence which would probably change result at trial, so as to entitle defendant
27
to new trial, where codefendant's statements exculpating defendant had been presented to the
28
jury and had been rejected. N.R.S. 176.515(1) .See publication Words and Phrases for other
208
1
judicial constructions and definitions.
2
Mannon v. State, 645 P.2d 433
Nev.,1982
3
Testimony by defendant's girl friend in which she admitted that she had been one who furnished
4
marijuana to boys did not constitute newly discovered evidence that entitled defendant
5
to a new trial where defense counsel had been given this information on night of first trial day
6
but was asked “not to tell” because girl friend was afraid defendant would be angry with her
7
for her disclosure. N.R.S. 176.515 .
8

9
Hilt v. State, 541 P.2d 645

10
110 CRIMINAL LAW
11

12
13
110 938 In General
14
110k938(3) k. Facts within knowledge of defendant.
Nev.,1975
15
Defendant was not entitled to new trial on basis of newly discovered evidence consisting of
16
statements made by prosecution witness against defendant, inasmuch as defense counsel had
17
been well aware of the facts during trial and some of the statements had been made to defendant.
18
N.R.S. 176.515 .
19
State v. Fouquette, 221 P.2d 404
20 Nev.,1950
Refusal of court to grant new trial upon ground of newly discovered evidence was proper
21
where such evidence related to mental and physical condition of accused long prior to murder
22
which was known to accused and his counsel before trial.

23
24
25 D'Agostino v. State, 915 P.2d 264
26
110 CRIMINAL LAW
27

28
110 939 Diligence

209
1
2
Nev.,1996
To merit new trial, newly discovered evidence must be evidence that could not have been discovered
3
through reasonable diligence either before or during trial.

4
Callier v. Warden, Nevada Women's Correctional Center, 901 P.2d 619

5
Nev.,1995
6
In assessing cases involving possible perjury at trial, whether in context of new trial motion or
7
habeas petition, trial court should order new trial based on witness recantation only if the following
8
criteria are met: (1) court is satisfied that trial testimony of material witnesses was
false; (2) evidence showing that false testimony was introduced at trial is newly discovered;
9
(3) evidence could not have been discovered and produced for trial even with exercise of reasonable
10
diligence; and (4) it is probable that had false testimony not been admitted, different
11
result would have occurred at trial.

12
13
14
110 CRIMINAL LAW
15
16

17
110k940 k. Materiality.
18
Nev.,1931
19
Mere admissibility of newly discovered evidence is not sufficient to justify new trial if it does
20 not appear that evidence possesses requisite materiality.

State v. Soares, 296 P. 1081
21
Nev.,1931
22
Defendant held not entitled to new trial for robbery on ground of newly discovered evidence
23
to effect that prosecuting witness believed defendant's associate robbed witness on spur of
24
moment and that defendant had nothing to do with robbery.
25
26
27
110 CRIMINAL LAW

28

210
1
2
110 941 Cumulative Evidence
3
Nev.,1965
4
Newly discovered evidence which is cumulative may not be enough to warrant another trial.
5
N.R.S. 175.535, subd. 7.
6
O'Briant v. State, 295 P.2d 396
7
Nev.,1956
8
In prosecution for arson based on allegedly incendiary origin of fire in rear room of defendant's
store, denial of new trial on ground of newly discovered evidence that polishing cloths
9
stored in rear room were subject to spontaneous combustion was not abuse of discretion, since
10
such evidence was merely cumulative in view of fact that jury was well aware that inflammable
11
and combustible materials were present in room and of defendant's theory that such materials
12
caused fire.
13
State v. Randolph, 242 P. 697
14
Nev.,1926
New trial for newly discovered cumulative evidence properly refused.
15
16

17
O'Neill v. State, 2008 WL 6102001

18
110 CRIMINAL LAW
19
20 110 937 Newly Discovered Evidence

110 942 Impeachment of Witness
21
22
Nev.,2008
23
Defendant was not entitled to new trial on charges of possession of forged instruments based
24
on alleged newly discovered evidence concerning probation officer's false report of receipt of
25 negative urine sample from defendant and his subsequent firing, as evidence was impeachment
26
evidence which could not form the basis for a new trial.
27
Nev.,1998
28
Newly discovered impeachment evidence may be sufficient to justify granting a new trial if
211
1
the witness impeached is so important that impeachment would necessitate a different verdict.
2
N.R.S. 176.515 .
3
Nev.,1998
4
Evidence that witnesses who testified against defendant accused of burglary, grand larceny,
5
and theft, conspired with each other to murder witness' ex-wife and that one witness was substantially
6
in debt to the other, was not cumulative but justified a new trial; defendant claimed
7
he was framed by witnesses, defendant was largely convicted based on the testimony of the
8
witnesses, jury was under the mistaken impression that witnesses were neutral, and knowledge
of the conspiracy was critical to defendant's defense. N.R.S. 176.515 .
9
D'Agostino v. State, 915 P.2d 264

10
Nev.,1996
11
Defendant convicted of first-degree murder based, at least in part, on testimony of his estranged
12
wife was not entitled to new trial based on evidence which he discovered after trial as
13
to state's dismissal of criminal charges against wife; question of wife's alleged cooperation
14
with state was explored in great detail at defendant's trial, at which defense attorney pointed
out the pendency of criminal charges that were later dismissed and questioned wife as to her
15
receipt of money from secret witness fund, and evidence of defendant's guilt was overwhelming.
16

17
Nev.,1996
18
Defendant cannot obtain new trial based on newly discovered evidence which merely contradicts,
19
impeaches or discredits witness at defendant's trial, unless witness' testimony was so important
20 that different result would be reasonably probable.

King v. State, 596 P.2d 501
21
Nev.,1979
22
Newly discovered impeachment evidence may be sufficient to justify granting a new trial if
23
the witness impeached is so important that impeachment would necessitate a different verdict.
24
25 Nev.,1979
26
Where review of the evidence at murder trial revealed that testimony of defendant's
15-year-old stepdaughter was not so crucial that a different result would be required if the
27
stepdaughter were impeached and where, at hearing on defendant's motion for a new trial
28
based on alleged newly discovered evidence consisting of stepdaughter's statement that she
212
1
had lied at the trial, the stepdaughter affirmed her original trial testimony and denied having
2
told a private investigator that she had lied at the trial, the district court did not abuse discretion
in denying the new trial motion.
3
Riley v. State, 567 P.2d 475

4
Nev.,1977
5
Conviction obtained by knowing use of perjured testimony is fundamentally unfair and must
6
be set aside if there is any reasonable likelihood that false testimony could have affected judgment
7
of jury. U.S.C.A.Const. Amend. 5 .
8
Nev.,1931
9
New trial for newly discovered evidence impeaching in character held properly denied.
10
State v. Willberg, 200 P. 475
11
Nev.,1921
12
Newly discovered impeaching evidence is not ground for new trial.
13
14
15
110 CRIMINAL LAW
16

17

18
19
110k942(2) k. Contradictory statements by witness.
20 Nev.,1997
Newly discovered evidence of codefendant's statement to jailhouse informants that codefendant
21
killed victim did not entitle defendant to new trial in prosecution for first-degree murder.
22
N.R.S. 176.515 , subd. 1.

23

24
Nev.,1995
25 In assessing cases involving possible perjury at trial, whether in context of new trial motion or
26
27
28
213
1
2
result would have occurred at trial.
3
Nev.,1995
4
Finding that trial testimony was indeed false is essential in evaluating whether new trial
5
should be granted in alleged perjury cases, and trial court should first address falsity issue.
6
7
8
Clem v. State, 760 P.2d 103
110 CRIMINAL LAW
9

10
11
110k943 k. Conflicting or contradicted evidence.

12
Nev.,1988
13
Evidence which contradicted witness' prior testimony in criminal trial was insufficient to support
14
grant of new trial on newly discovered evidence grounds, especially where the new evidence,
a witness who stated he was at scene of crime, could no longer be located.
15
16
Nev.,1979
17
In absence of any proof that defendant's 15-year-old stepdaughter committed perjury at defendant's
18
murder trial and where the setting in which the recorded conversation took place was
19
not such as to ensure truthfulness, the fact that a detective working for the defense had
20 secretly recorded a conversation wherein the stepdaughter stated that she lied at the trial was
not sufficient to create a due process requirement that defendant be given a new trial.
21
U.S.C.A.Const. Amends. 5 , 14 .
22
23

24
McLemore v. State, 577 P.2d 871
25 110 CRIMINAL LAW
26
27
110k944 k. Credibility.
28
Nev.,1978
214
1
In view of lack of evidence other than hearsay to indicate that black man identified by defense
2
investigator was in fact black man identified by bartender as second man who robbed tavern
and who was in vehicle when license number was taken, failure of bartender to identify such
3
individual from photographic lineup was immaterial to her credibility in positively identifying
4
defendant as robber, and in view of fact that bartender's testimony identifying defendant was
5
not in any way put in doubt and since closing argument afforded counsel appropriate means to
6
address any claimed weaknesses in eyewitness identification, trial court on motion for new trial
7
on ground of newly discovered evidence properly refused to interfere with province of jury
8
in determining credibility of bartender's testimony. N.R.S. 176.515 , 193.165 , 200.380 .

10
11
110 CRIMINAL LAW

12
13
14
110 945 Sufficiency and Probable Effect
110k945(1) k. Probable effect of new evidence, in general.
15
Nev.,1996
16
To merit new trial, newly discovered evidence must be such as to render different result probable
17
on retrial.
18
19
Nev.,1995
20 In assessing cases involving possible perjury at trial, whether in context of new trial motion or
21
22
23
24
25 result would have occurred at trial.
26
Armstrong v. State, 605 P.2d 1142
Nev.,1980
27
In prosecution for infamous crime against nature for commission of an act of sodomy against
28
a 17-year-old, trial court, in considering defendant's motion for new trial, properly concluded
215
1
that laboratory report which defendant intended to use to impeach victim but which State had
2
not made available would not have affected the outcome especially where another report confirmed
that an act of sodomy had occurred. N.R.S. 201.190 .
3
State v. Crockett, 444 P.2d 896

4
Nev.,1968
5
Credibility is not test of motion for new trial and trial judge must instead review circumstances
6
in their entire light and then decide whether new evidence will probably change result
7
of trial.
8
Nev.,1965
9
To warrant new trial alleged newly discovered evidence must be such as to render different
10
result probable on retrial. N.R.S. 169.110, 175.535, subd. 7.
11
12
13
King v. State, 2009 WL 3189007
14
110 CRIMINAL LAW
15
16

17
110k945(2) k. Particular evidence or cases.

18
Nev.,2009
19
Defendant convicted of first-degree murder by means of child abuse was not entitled to new
20 trial based on newly discovered evidence in the form of a blanket the infant victim was
wrapped in on the night of his death, which both sides had unsuccessfully attempted to find
21
prior to trial; although defendant argued that blanket corroborated his testimony that infant
22
died from choking on his own vomit rather than blunt head trauma, forensic pathologist, who
23
testified at trial that he could not determine a cause of death, still could not establish a cause
24
of death, even with the blanket, evidence of blood and vomit on the blanket would not necessarily
25 impeach witnesses who said they did not see blood or vomit, and autopsy evidence remained
26
the best evidence in the case.
O'Neill v. State, 2008 WL 6102001
27
Nev.,2008
28
Alleged newly discovered evidence that search of defendant was based on fabricated evidence
216
1
did not warrant new trial on charges of possession of forged instruments, as defendant did not
2
show that a different result would be probable on retrial.
3
Nev.,1997
4
Defendant convicted of first-degree murder was not entitled to new trial on ground of newly
5
discovered evidence that he purchased pure-grain alcohol on day of the murder, supporting his
6
argument that he was too drunk to commit first-degree murder, as it was not reasonably probable
7
that the new evidence would have led to a different result.
8
Simmons v. State, 912 P.2d 217
Nev.,1996
9
Even if suppressed testimony of murder victim's neighbor that he had not heard gun shots on
10
night of murder could be categorized as newly discovered evidence that might entitle defendant
11
to new trial, it was not of such quality that, when considered by jury, would probably result
12
in different outcome if new trial were permitted where evidence had been presented to jury
13
that neighbors heard nothing unusual, and physical evidence overwhelmingly indicated that
14
victim was shot in his residence, rather than being shot somewhere else and then taken to his
home.
15
16

17
State v. Stanley, 4 Nev. 71

18
110 CRIMINAL LAW
19
20 110 948 Application for New Trial

110 949 Form and Requisites in General
21
22
Nev.,1868
23
An application for new trial, on the ground that the jury received evidence out of the trial, that
24
they separated contrary to instructions, or because the verdict was reached by casting lots, or
25 some other unfair means, may be presented by affidavit, without either statement or bill of
exceptions.
26
27

28
Layton v. State, 510 P.2d 864
217
1
110 CRIMINAL LAW
2
110 948 Application for New Trial
3
110k950 k. Jurisdiction.
4
Nev.,1973
5
It was neither necessary nor proper to apply in first instance to Supreme Court for leave to
6
move for new trial based on newly discovered evidence; rather, such a motion was required to
7
be made in district court. N.R.S. 176.515 , subd. 3.
8

9
King v. State, 2009 WL 3425661

10
110 CRIMINAL LAW
11

12
13
110 951 Time for Making
14
Nev.,2009
15
Trial court properly dismissed motion for new trial that was not based on newly discovered
16
evidence and was filed more than eight years after entry of the judgment of conviction. West's
17
NRSA 176.515 (4).

18
Watts v. State, 2008 WL 6124788
19
Nev.,2008
20 Trial court could deny defendant's motion for new trial as untimely; the motion was not based
upon newly discovered evidence and was not filed within seven days after the jury's verdict.
21
West's NRSA 176.515 (4).

22
Browning v. State, 91 P.3d 39

23
Nev.,2004
24
Defendant's motion for a new trial based on newly discovered evidence was untimely, where
25 the motion was made more than two years after his conviction. West's NRSA 176.515 , subd.
26
3.
27
Nev.,1996
28
Motion for new trial that was not filed until more than two years after jury returned verdict of
218
1
guilty and defendant was sentenced to death was not filed in timely fashion, under Nevada
2
statute providing that whenever motion for new trial is based on newly discovered evidence,
motion must be filed within two years after verdict or finding of guilt; trial court properly rejected
3
defendant's contention that two-year window should begin to run, in capital case, only
4
after conclusion of all appeals. N.R.S. 176.515 , subd. 3.

5
DePasquale v. State, 803 P.2d 218
6
Nev.,1990
7
District court did not err in not hearing murder defendant's motion for new trial, filed one day
8
late. N.R.S. 176.515 , subd. 4.
Snow v. State, 779 P.2d 96
9
Nev.,1989
10
Statute requiring that motions for new trial based on newly discovered evidence be brought
11
within two years after verdict did not violate equal protection clause of Fourteenth Amendment
12
on basis of distinguishing between those prisoners who bring their motions within the
13
two years and those who do not, where defendant has avenue, through petition for habeas corpus,
14
by which he may present his allegedly exculpating, newly discovered evidence more than
two years after the verdict. N.R.S. 176.515 , subd. 3; U.S.C.A. Const.Amend. 14 .
15
Snow v. State, 779 P.2d 96
16
Nev.,1989
17
Although important private interest exists in right not to be executed erroneously, two-year
18
statute of limitations on motion for new trial based on newly discovered evidence did not violate
19
death penalty defendant's due process rights, where defendant had option of presenting
20 newly discovered evidence in petition for writ of habeas corpus. N.R.S. 176.515 , subd. 3;
U.S.C.A. Const.Amend. 14 .
�
21
Hargrove v. State, 686 P.2d 222

�
22
Nev.,1984
�
23
Both a motion for a new trial and a motion to withdraw a guilty plea may be made after conviction.
�
24
N.R.S. 176.165 , 176.515 .
�
25
26
27
110 CRIMINAL LAW

28

219
1
2
110 954 Statement of Grounds
3
Nev.,1965
4
Conclusory statement in moving papers that new evidence has been discovered, material to
5
defense, by defendant, and that it could not with reasonable diligence have been discovered
6
and procured at the trial was not sufficient to warrant granting of new trial. N.R.S. 169.110,
7
175.535, subd. 7.
8

9
State v. Bauer, 122 P. 76

10
110 CRIMINAL LAW
11

12
13
110 955 Bill of Exceptions or Statement of Case
14
110k955(1) k. Necessity for bill of exceptions.
Nev.,1912
15
Where a motion for a new trial is based on matters transpiring before the court, it may be
16
made without a bill of exceptions.

17
18
19
20 110 CRIMINAL LAW

21

22
110 956 Affidavits and Other Proofs in General

23
24
Nev.,2009
25 As first of three steps involved on a non-English-speaking defendant's motion for new trial
26
based on alleged inaccuracies of his translated trial testimony, each party should have its own
interpreter review the translated testimony for discrepancies; if discrepancies exist, the defendant
27
has the burden of demonstrating the inaccuracy of the translated testimony and that it
28
fundamentally altered the substance of his actual testimony. West's NRSA 176.515 .
220
1
2
Nev.,2009
As second of three steps involved on a non-English-speaking defendant's motion for new trial
3
based on alleged inaccuracies of his translated trial testimony, the district court should appoint
4
an independent and, if available, certified court interpreter to review the translations; to determine
5
whether the defendant has met his burden of demonstrating the inaccuracy of the
6
translated testimony, the district court must consider the disputed versions of the testimony to
7
determine whether the alleged inaccuracies or omissions fundamentally altered the context of
8
the defendant's testimony and whether the inaccuracies prejudiced the defendant such that a
new trial is warranted. West's NRSA 176.515 .
9
State v. McKay, 165 P.2d 389

10
Nev.,1946
11
The portion of sheriff's affidavit relating to letter alleged to have been written by defendant
12
while in county jail to woman in Utah requesting that hacksaw blades be sent him, although it
13
would have been relevant at trial to show consciousness of guilt and fear of consequences,
14
was not proper for that purpose after the trial upon motion for new trial upon ground of insufficiency
of evidence to justify the verdict.
15
16
Nev.,1946
17
No evidence would be proper upon a motion for new trial that was proper, relevant, or material
18
to issues at the trial, involving guilt or innocence of defendant, and not there introduced.
19
20 Nev.,1946
Only the evidence admitted at trial, and before case was finally submitted to jury, can be considered
21
upon a motion for new trial in determining sufficiency of evidence to justify the verdict.
22

23
Nev.,1946
24
The portion of sheriff's affidavit narrating defendant's attempted escape from county jail while
25 waiting trial, when admitted upon hearing of defendant's motion for new trial, was admissible
26
only to show criminal and desperate character of defendant for purpose of showing reasonable
necessity for keeping him handcuffed at time of the trial, and failure to restrict use of affidavit
27
for such purpose was erroneous.

28
State v. Stanley, 4 Nev. 71

221
1
Nev.,1868
2
An application for new trial on the ground that defendant was not present during the trial may
be presented simply by affidavit, without either statement or bill of exceptions.
3

5
State v. Sorenson, 315 P.2d 508
6
110 CRIMINAL LAW
7
8
9
110k956(2) k. Necessity for affidavits in general.

10
Nev.,1957
11
Trial court's failure, in granting new trial after conviction, to require compliance with statutory
12
requirement that motion for new trial based on misconduct be supported by affidavit
13
would not be determined erroneous where trial court granted said motion on additional ground
14
which did not require support by affidavit. N.R.S. 169.110.
15
16
Isbell v. State, 626 P.2d 1274

17
110 CRIMINAL LAW

18
19
20 110 956 Affidavits and Other Proofs in General

110k956(10) k. Sufficiency of proofs as to disqualification of jurors.
21
Nev.,1981
22
Evidence supported trial court's finding that juror had not maintained a bias against defendant
23
which she had concealed on voir dire.

24
26
110 CRIMINAL LAW
27

28

222
1
2
110k956(11) k. Misconduct of or affecting jurors in general.
Nev.,2003
3
In claims of jury misconduct based on intrinsic influences and extrinsic material that does not
4
generally raise a presumption of prejudice, the defendant must, through admissible evidence,
5
demonstrate the nature of the juror misconduct and that there is a reasonable probability that it
6
affected the verdict.
7
8
Pendleton v. State, 734 P.2d 693
9
110 CRIMINAL LAW

10
11

12
13
110k956(13) k. Sufficiency of proofs as to misconduct of or affecting jurors.
14
Nev.,1987
Although procedure for alleging juror misconduct on motion for new trial usually involved
15
submission of affidavits of jurors, detailing misconduct of other jurors, so that district judge
16
could then call hearing to question affiant about matter, under circumstances of case, there
17
was no infirmity in procedure utilized by defense counsel of submitting his own affidavit alleging
18
juror misconduct.
19
Little v. State, 625 P.2d 572
20 Nev.,1981
Though affidavits were admitted for limited purpose of showing concealment of actual bias on
21
part of jurors, where nothing in record compelled a finding of intentional concealment by jurors,
22
trial court acted well within its discretion in determining that a new trial was not warranted.
23

24
Nev.,1958
25 In murder prosecution, evidence sustained implied finding that separations of jurors were not
26
prejudicial.
27

28

223
1
110 CRIMINAL LAW
2
3
110 957 Statements, Affidavits, and Testimony of Jurors

4
5
Nev.,2003
6
Because claims of juror misconduct based on intrinsic influences can rarely be proven without
7
resort to inadmissible juror affidavits that delve into the jury's deliberative process, only in extreme
8
circumstances will intrinsic influences justify a new trial. West's NRSA 50.065 .
9
Nev.,2003
10
The district court, for purposes of a claim of juror misconduct, must apply an objective test in
11
evaluating the impact of the extrinsic material or intrinsic misconduct on the verdict and
12
should not investigate the subjective effects of any extrinsic evidence or misconduct on the
13
jurors.
14
Tinch v. State, 946 P.2d 1061
Nev.,1997
15
As general rule, jurors may not impeach their own verdict.
16

17
Nev.,1979
18
Nevada law allows juror testimony regarding objective facts or overt conduct constituting juror
19
misconduct.
20 Walker v. State, 594 P.2d 710

Nev.,1979
21
Where it is claimed that a juror has answered falsely on voir dire about a matter of potential
22
bias or prejudice, an exception is made to general rule that a juror's statements will not be received
23
to impeach the verdict.

24
Cook v. State, 359 P.2d 483
25 Nev.,1961
26
Jurors could not impeach their own verdict.
Pinana v. State, 352 P.2d 824
27
Nev.,1960
28
Personal testimony of jurors, as to asserted misconduct, proffered as attempt to have jurors

224
1
impeach their own verdict by showing that they had answered questions on voir dire examination
2
improperly and that they had considered facts outside record was properly refused.
3
Nev.,1946
4
Generally, jurors may testify to any facts showing the existence of an outside influence, but
5
they cannot give evidence to the effect any such outside influence may have had on their
6
minds in arriving at a verdict.
7
8
Nev.,1946
Generally, affidavits or testimony of jurors are admissible when offered by prosecution for
9
purpose of sustaining the verdict.

10
11
Nev.,1946
12
Affidavits by jurors that they were not influenced by reading newspaper articles, or by improper
13
arguments of prosecuting attorney, or by improper evidence or exhibits introduced in
14
the jury room, or that they did not pay any attention to fact that instruction delivered to them
was marked “refused”, cannot be considered.
15
16
Nev.,1946
17
Affidavits of jurors, in which they stated they were not influenced by fact that defendant was
18
shackled during course of trial, was not competent evidence to show absence of any prejudicial
19
influence upon their minds as result of shackling of defendant, and admission of such
20 evidence on defendant's motion for new trial was improper.

21
Nev.,1939
22
Verdicts cannot be impeached by jurors' affidavits.

23
State v. Stewart, 9 Nev. 120

24
Nev.,1874
25 Juror's affidavit is inadmissible to impeach verdict.
26
References
Impeachment of verdict by juror's evidence that he was coerced or intimidated by fellow juror
27
39 American Law Reports 4th 800 (1985)

28
9 Norton Bankruptcy Law and Practice 2d Fed. R. Evid. 606 (1998)

225
1
2
Tinch v. State, 946 P.2d 1061
3
110 CRIMINAL LAW

4

5
6
7
110k957(2) k. Denying or explaining assent to verdict.
8
Nev.,1997
Juror's testimony, prior to penalty phase of murder trial, to effect that she had told bailiff prior
9
to reading of verdict that she wanted to change her verdict and that bailiff had told her that she
10
could not do so, did not require declaration of mistrial, where juror did not repudiate her verdict
11
at time jury was polled and bailiff's testimony as to his conversation with juror conflicted
12
with juror's testimony.
13
Echavarria v. State, 839 P.2d 589
14
Nev.,1992
Statements of juror during posttrial interview that she had voted for death penalty only because
15
she thought that verdict would be overturned on appeal was not admissible to impeach
16
jury's verdict.
17

18
Nev.,1939
19
Affidavits of jurors to show misconduct of jury and that verdict was coerced as a result of
20 misrepresentation and deceit of fellow jurors, were valueless as being contrary to facts shown
by record and as not disclosing the name of any juror who misrepresented any facts.
21
22

23
Valdez v. State, 196 P.3d 465

24
110 CRIMINAL LAW
25 110XXI Motions for New Trial
26
27
110k957(3) k. Misconduct of jurors, in general.

28
Nev.,2008
226
1
On a motion for mistrial based on intrinsic juror misconduct, the defendant must prove the
2
nature of the jury misconduct and that there is a reasonable possibility that the misconduct affected
the verdict; the defendant may only prove the misconduct using objective facts and not
3
the state of mind or deliberative process of the jury.

4

5
Nev.,2003
6
Proof of juror misconduct must be based on objective facts and not the state of mind or deliberative
7
process of the jury. West's NRSA 50.065 .
8
Nev.,2003
9
Juror affidavits that delve into a juror's thought process cannot be used to impeach a jury verdict
10
based on misconduct and must be stricken. West's NRSA 50.065 .
11

12
Nev.,2003
13
Before a defendant can prevail on a motion for a new trial based on a claim of juror misconduct,
14
the defendant must present admissible evidence sufficient to establish: (1) the occurrence
of juror misconduct, and (2) a showing that the misconduct was prejudicial.
15
16
Nev.,2003
17
Affidavits or statements by jurors about the actual effect of juror misconduct on the deliberations
18
or their individual decisions are not admissible to determine the impact of the misconduct
19
upon a verdict. West's NRSA 50.065 .
20 Meyer v. State, 80 P.3d 447

Nev.,2003
21
District court did not abuse its discretion, for purposes of claim of juror misconduct brought
22
by sexual assault defendant, in striking portion of juror affidavits that included references regarding
23
side effects of victim's Accutane medication, which had been told to jury by juror
24
who researched the medication, and references regarding the effect sentencing discussions had
25 on mental process of two of the jurors, even though defendant claimed excluded portions were
26
determinative of misconduct claim, as defendant alleged at trial that physical marks on victim's
body were caused by a reaction to victim's Accutane medication or falling; record revealed
27
that the stricken portions of the juror affidavits outlined the effect that the alleged misconduct
28
had upon some of the jurors, or how the jury conducted its deliberations. West's
�
�
227
1
NRSA 50.065 .
2
Little v. State, 625 P.2d 572
Nev.,1981
3
When it is claimed a juror has answered falsely on voir dire about a matter of potential bias or
4
prejudice, affidavits of other jurors revealing such improper conduct may be received to impeach
5
their verdict.
6
7
Nev.,1979
8
Juror's affidavit to effect that jury foreman misstated to other jurors the judge's response to
jurors' questions during deliberation was competent evidence impeaching verdict, since it was
9
testimony regarding an objective fact constituting juror misconduct and was admissible.
10
N.R.S. 48.025 , 50.065 , subd. 2.
11
Barker v. State, 594 P.2d 719

12
Nev.,1979
13
Where court excluded from its consideration of jury misconduct those portions of affidavit
14
which did deal with mental processes or effect upon jurors of alleged misconduct, and only relied
upon those portions of affidavits of testimony dealing with the conduct and the statements
15
to the jury of the foreman, these were objective facts over and capable of ascertainment by
16
any observer and the court, therefore, proceeded properly under applicable rule. N.R.S. 50.065
17
, subd. 2.
18
19
Nev.,1946
20 Though jurors may be permitted to testify as to whether any particular act alleged as misconduct
on part of jurors occurred, or as to existence of any fact militating against fair trial, they
21
are not permitted to give evidence, either orally or by affidavit, upon motion for new trial, as
22
to effect such misconduct or prejudicial act had upon their minds.

23

24
Nev.,1946
25 The jurors are competent to rebut allegations of bias and misconduct, but, where act of misconduct
26
is admitted, it cannot be shown by jurors that accused suffered no prejudice by reason
thereof, since under such circumstances the presumption of prejudice is conclusive.
27
State v. Crutchley, 12 P. 113

28
Nev.,1886
228
1
The affidavit of a trial juror, in a trial for murder, purporting to give a statement made by another
2
juror after the jury has retired to consider their verdict, is not generally evidence of misconduct
which the court can consider in support of a motion for a new trial.
3
References
4
Prejudicial effect of jury's procurement or use of book during deliberations in criminal cases
5
6
Propriety of juror's tests or experiments in jury room 31 American Law Reports 4th 566
7
(1984)
8

9

10
110 CRIMINAL LAW
11

12
13
14
110k957(5) k. Consideration by jury of matters not in evidence.
Nev.,2003
15
To determine whether there is a reasonable probability that juror misconduct affected a verdict,
16
a court may consider a number of factors, which include how the extraneous information
17
was introduced to the jury, the length of time it was discussed by the jury, the timing of its
18
introduction,
whether the information was ambiguous, vague, or specific in content, whether the
19
information was cumulative of other evidence adduced at trial, whether the information involved
20
a material or collateral issue, whether the information involved inadmissible evidence,
21
and in addition, the trial court must make a consideration of the extrinsic influence in light of
22
the trial as a whole and the weight of the evidence.
23
24
Nev.,2003
The district court's factual inquiry for purposes of a claim of juror misconduct is limited to
25
determining
26
the extent to which jurors were exposed to the extrinsic or intrinsic evidence.
27
28
Nev.,1960
229
1
Affidavits concerning hearsay statements of one of the jurors, and amounting to indirect way
2
of permitting juror to impeach his own verdict, were not entitled to consideration on motion
for new trial.
3

4
Nev.,1960
5
Personal testimony of jurors, as to asserted misconduct, proffered as attempt to have jurors
6
impeach their own verdict by showing that they had answered questions on voir dire examination
7
improperly and that they had considered facts outside record was properly refused.
8
Nev.,1946
9
Affidavits by jurors that they were not influenced by reading newspaper articles, or by im-
10
proper arguments of prosecuting attorney, or by improper evidence or exhibits introduced in
11
the jury room, or that they did not pay any attention to fact that instruction delivered to them
12
was marked “refused”, cannot be considered.
13
References
14
Juror's reading of newspaper account of trial in state criminal case during its progress as
ground for mistrial, new trial, or reversal 46 American Law Reports 4th 11 (1986)
15
Prejudicial effect of jury's procurement or use of book during deliberations in criminal cases
16

17
Jury's discussion of parole law as ground for reversal or new trial 21 American Law Reports
18
4th 420 (1983)
19

Lewis v. State, 596 P.2d 854
21
110 CRIMINAL LAW

22

23

24
110 958 Affidavits and Evidence as to Newly Discovered Evidence
25 110k958(1) k. In general.
26
Nev.,1979
Trial Court did not err in denying new trial in murder prosecution on basis of allegedly newly
27
discovered evidence contained in affidavit executed by codefendant exculpating defendant

28
from any participation in the crime.

230
1
2
3
110 CRIMINAL LAW

4

5
6
7
110k958(6) k. Sufficiency of proofs in general.
8
Nev.,1989
Trial court did not err in refusing mistrial in prosecution for murder by torture based upon alleged
9
perjured testimony of key witness for prosecution; alleged perjury, that witness was in
10
fact brother of victim's mother, was not proved.
11

12
Nev.,1965
13
Facts bearing upon reasonable diligence to procure evidence for trial must be shown by best
14
evidence possible on motion for new trial. N.R.S. 175.535, subd. 7.
15
16
Libby v. State, 975 P.2d 833

17
110 CRIMINAL LAW

18
19
20 110k959 k. Hearing and rehearing in general.

Nev.,1999
21
Evidentiary hearing regarding claim of gender discrimination in jury selection was not meaningless,
22
so as to warrant a new trial, even though almost eight years had passed since the jury
23
selection; while prosecutor was unable to remember every detail, such as each potential juror's
24
clothing or exact demeanor, the defense had ample opportunity to cross-examine the prosecutor
25 to challenge both his credibility and his memory, and the determination that he could sufficiently
26
recall and articulate his reasons for exercising his peremptory challenges was not an
abuse of discretion.
27
28

231
1
Rudin v. State, 86 P.3d 572
2
110 CRIMINAL LAW
3

4
110k961 k. Determination.
5
Nev.,2004
6
Murder defendant's naked allegations that trial court's decision to deny her motion for new trial
7
was colored by bias or lack of impartiality were insufficient to establish any impropriety;
8
defendant had burden of setting forth facts, but failed to do so.
9
Nev.,1994
10
District court which granted new trial to defendant clearly identified the conflict in the evidence
11
when it noted in its opinion that evidence as to defendant's guilt was conflicting and then
12
stated its general impression with regard to each count, as well as its reasons for disagreeing
13
with jury verdict. N.R.S. 176.515 .
14
Nev.,1994
15
Although district court termed evidence “insufficient,” thorough reading of its decision revealed
16
that district court did not find evidence insufficient as a matter of law to support verdict,
17
but instead found that it was conflicting and that verdict was not based on substantial
18
evidence and thus, district court's order granting new trial was proper. N.R.S. 176.515 .
19

21
110 CRIMINAL LAW

22

23
110k964 k. Order granting or refusing new trial.

24
Nev.,2009
25 As final step involved on a non-English-speaking defendant's motion for new trial based on
26
alleged inaccuracies of his translated trial testimony, the district court should preserve copies
of translations for the record on appeal. West's NRSA 176.515 .
27
28
232
1
2
Bell v. Coughlin, 820 F.Supp. 780
110 CRIMINAL LAW
3

4
110 913 Grounds for New Trial in General

5
6
S.D.N.Y.,1993
7
Police officer's false testimony concerning his knowledge of ballistics tests other than one to
8
which he testified, condition of two of six bullets and one of six cartridge shells found at
crime scene, and whether he took those bullets and shell with him to conduct ballistics tests
9
did not require new trial, notwithstanding defendants' contention that disclosure of officer's
10
perjury would have bolstered their argument at trial that state would have gone to any lengths
11
to convict defendants of murder of two police officers and shaken jury's faith in ballistics results;
12
there was no evidence that prosecutors knew that officer's testimony was false, false
13
testimony did not undercut identification of gun in defendants' possession as murder weapon
14
based on other shells and bullets, and, even without gun identification, prosecution's case was
extremely strong.
15
Smitherman v. State, 521 So.2d 1050
16
Ala.Crim.App.,1987
17
Fact that former police officer and primary witness, in sale of controlled substances trial, was
18
not only source of inculpatory evidence for State, most notably defendant's statements upon
19
arrest, was significant in deciding whether defendant was entitled to new trial, after primary
20 witness' credibility had been later undermined by charges of perjury and improprietous actions
in other drug investigations.
21
References
22
INCOMPETENT PRINCIPALS, COMPETENT THIRD PARTIES, AND THE LAW OF

23
AGENCY 61 Indiana Law Journal 115 (1986)

24
26
U.S. v. McCourty, 562 F.3d 458
110 CRIMINAL LAW
27

28

233
1
2
C.A.2.N.Y.,2009
Denial of drug defendant's motion for new trial was not abuse of discretion, notwithstanding
3
defendant's contention that testifying police officers committed perjury, inasmuch as it was
4
within purview of jury to assess officers' credibility, and officers' testimony was not so patently
5
incredible or defiant of physical realities as to justify intrusion upon jury's verdict. Comprehensive
6
Drug Abuse Prevention and Control Act of 1970, § 401, 21 U.S.C.A. § 841 ;
7
Fed.Rules Cr.Proc.Rule 33, 18 U.S.C.A .
8
Harris v. U.S., 9 F.Supp.2d 246
S.D.N.Y.,1998
9
Lending officer's civil depositions failed to establish perjury by her in testifying for government
10
in prosecution of borrowers' chief executive officer (CEO) for defrauding lenders in
11
connection with speculative oil trading through another company owned by CEO, for purposes
12
of CEO's entitlement to new trial or correction of sentence; officer merely stated in deposition
13
that she lacked information on company's activities. 28 U.S.C.A. § 2255 ; Fed.Rules
14
Civ.Proc.Rule 33, 28 U.S.C.A .
Harris v. U.S., 9 F.Supp.2d 246
15
S.D.N.Y.,1998
16
Knowledge or perceptions of officers of banks other than bank for which government witness
17
worked as lending officer was not directly probative of witness' knowledge or perceptions and
18
thus whether she committed perjury in testifying against borrowers' chief executive officer
19
(CEO) in prosecution for defrauding lenders, for purposes of determining CEO's entitlement
20 to new trial or correction of sentence. 28 U.S.C.A. § 2255 ; Fed.Rules Civ.Proc.Rule 33, 28

U.S.C.A .
21
U.S. v. Chin, 910 F.Supp. 889

22
E.D.N.Y.,1995
23
Defendant found guilty of being felon in possession of weapon was not entitled to new trial,
24
even though defendant claimed that inconsistencies between earlier testimony of police officer
25 and trial testimony were so numerous as to indicate perjury rather than memory lapses
26
or other non-perjurious causes of conflict; inconsistencies related to chase of defendant, and
not his alleged discarding of weapon as he ran down an alleyway, which was central to defendant's
27
theory that police “planted” weapon.

28
U.S. v. Pandozzi, 878 F.2d 1526

234
1
C.A.1.R.I.,1989
2
Failure to disclose state police officer's memorandum on interview with witness did not warrant
new trial on charge of perjury before grand jury where defendant could have obtained
3
same information with reasonable diligence and where failure to disclose the memo would not
4
have made a difference in the trial's outcome.

5
6
7
Com. v. Cornish, 547 N.E.2d 948
8
110 CRIMINAL LAW
9

10
110k919(3) k. In argument in general.
11
Mass.App.,1989
12
New trial was properly granted defendant convicted on possession of marijuana and trafficking
13
in cocaine due to judge's concerns with trustworthiness of evidence, fairness, and interests
14
of justice; evidence presented serious question as to whether police officer who was Commonwealth's
chief witness had committed perjury, officer was improperly allowed to offer
15
opinion of defendant's guilt, and prosecutor improperly sought in closing to have jury draw inference
16
adverse to defendant for failing to call as witness codefendant whose trial had been
17
severed.
18
References
19
20 other finding by jury is subject to review or correction by other authorities 10 American Law
21
22

23

24
110 CRIMINAL LAW
25 110XXI Motions for New Trial
26
110k921 k. Rulings on evidence.
Mass.App.,1989
27
28
235
1
2
3
4
severed.
5
6
7
8
110 CRIMINAL LAW
9
110 935 Verdict Contrary to Evidence

10
110k935(1) k. Weight and sufficiency of evidence in general.
11
Mass.App.,1989
12
13
14
15
16
17
severed.
18
19
20 Harris v. U.S., 9 F.Supp.2d 246

110 CRIMINAL LAW
21

22

23
110 938 In General

24
110k938(2) k. What constitutes newly discovered evidence in general.
25 S.D.N.Y.,1998
26
Trial exhibits or documents readily accessible to borrowers' chief executive officer (CEO)
(bank statements, borrowing base reports, and daily activity reports) were not newly discovered
27
evidence on question whether manager of lender's commodities division committed

28
perjury in testifying for government in prosecution for defrauding lenders in connection with
236
1
speculative oil trading, for purposes of determining CEO's entitlement to new trial or correction
2
of sentence. 28 U.S.C.A. § 2255 ; Fed.Rules Civ.Proc.Rule 33, 28 U.S.C.A .

4
U.S. v. Harvey, 540 F.2d 1345

5
110 CRIMINAL LAW
6
7
8
110 939 Diligence
9
C.A.8.Ark.,1976
10
Court's denial of defendant's posttrial motions, on claim that a FBI 302 statement to an agent
11
by telephone company security officer was “newly discovered” evidence of perjury by such
12
security officer that had been knowingly suppressed by prosecution, was not error, since any
13
inconsistency between testimony and FBI 302 report of statement during investigation was
14
readily discoverable at time of trial and there was no evidence of suppression or knowing use
of perjured testimony by Government.
15
16

17
Corso v. U.S., 389 F.Supp. 659

18
110 CRIMINAL LAW
19
20 110 937 Newly Discovered Evidence

110k940 k. Materiality.
21
S.D.N.Y.,1974
22
In absence of any prosecutorial misconduct and fact that the false testimony of officers with
23
respect to their denial of knowledge of existence of illegal wiretaps was not material to the issue
24
of guilt, there was no basis to grant new trial based on government witnesses' perjury.
25
26
U.S. v. St. Vallier, 404 Fed.Appx. 651
27
110 CRIMINAL LAW

28

237
1
2
3
C.A.3.N.J.,2010
4
District court did not abuse its discretion in denying defendant's motion for new trial in cocaine
5
importation prosecution, despite defendant's contention that government witness's perjury
6
about calls defendant made to Trinidad could have affected jury's judgment, where witness's
7
testimony regarding defendant's purported use of phone to call Trinidad was not indispensable
8
to his conviction, and defendant's conviction was supported by overwhelming evidence
from other sources, including testimony by law enforcement officers and defendant's coconspirator.
9
Fed.Rules Cr.Proc.Rule 33, 18 U.S.C.A .

10
U.S. v. Vogel, 251 Fed.Appx. 399
11
C.A.9.Cal.,2007
12
Caselaw providing for new trial based on critical witness' perjury or complete lack of reliability
13
did not warrant new trial for conspiracy and money laundering in connection with drug
14
activity based on co-conspirator's subsequent conviction for obstruction of official proceeding
arising from co-conspirator's lies to his probation officer.
15
Conley v. U.S., 164 F.Supp.2d 216
16
D.Mass.,2001
17
Evidence discovered during civil trial that prosecution witness identified persons other than
18
defendant at photo line-up as persons that he saw near scene of police officer's beating warranted
19
new trial for defendant convicted of perjury and obstruction of justice based upon his
20 grand jury testimony during investigation of the assault; evidence was not disclosed by prosecutors
despite defendant's specific request, and it was material since it could have been used
21
to impeach witness' trial testimony that defendant was one of the persons he saw near scene of
22
assault, which could have resulted in acquittal. U.S.C.A. Const.Amend. 5 ; Fed.Rules

23
Cr.Proc.Rule 33, 18 U.S.C.A .

24
U.S. v. Custis, 988 F.2d 1355
25 C.A.4.Md.,1993
26
Subsequent indictment of two police officer witnesses for perjury did not warrant new trial;
indictment involved unrelated case with issues that had no bearing on defendant's trial,
27
charges against officers were mere allegations, indictments were dismissed, and officers' account
28
of events leading to defendant's arrest was corroborated by testimony of third officer

238
1
and, to some extent, testimony of defendant himself.
2
U.S. v. Harvey, 540 F.2d 1345
C.A.8.Ark.,1976
3
Court's denial of defendant's posttrial motions, on claim that a FBI 302 statement to an agent
4
by telephone company security officer was “newly discovered” evidence of perjury by such
5
security officer that had been knowingly suppressed by prosecution, was not error, since any
6
inconsistency between testimony and FBI 302 report of statement during investigation was
7
readily discoverable at time of trial and there was no evidence of suppression or knowing use
8
of perjured testimony by Government.
Tyler v. State, 501 S.W.2d 189
9
Mo.App.,1973
10
Mere variance between the testimony of police officers at defendant's criminal trial and civil
11
trial against the officers to recover for alleged brutality were not sufficient to warrant vacation
12
of judgment and new trial on ground of perjury. V.A.M.R. Crim. Rule 27.26.
13
State v. Brazil, 504 P.2d 76
14
Ariz.App.Div.1,1972
Where inconsistencies in testimony of police officer witness were not of such nature as to
15
convince court that witness was committing or had committed perjury, new trial was not required.
16
Martin v. U. S., 154 F.2d 269

17
C.A.6.Ohio,1946
18
In prosecution for causing a girl to be transported in interstate commerce with intent to induce
19
her to engage in immoral practices in violation of White Slave Act, refusal of motion for new
20 trial on ground of newly discovered evidence, consisting of affidavits of police officer and of
father and uncle of girl allegedly transported in interstate commerce tending to show that girl
21
committed perjury touching material features of her testimony, did not constitute an abuse of
22
discretion. White Slave Act § 2, 18 U.S.C.A. § 2421 .

23
24
25 State v. Greco, 862 So.2d 1152
26
110 CRIMINAL LAW
27

28

239
1
110k942(2) k. Contradictory statements by witness.
2
La.App.4.Cir.,2003
State witnesses' recantation testimony at post-conviction hearing that they were forced by detective
3
and district attorney's investigator to testify falsely at murder trial that they heard defendant,
4
rather than accomplice, testify he was going to “roll” victim, and that they were
5
threatened with criminal charges if they spoke with defense counsel or testified otherwise,
6
supported findings that officers suborned perjury and that credibility of detective's and investigator's
7
testimony regarding circumstances of taking witnesses' statements defendant's
8
confession, in which detective admitted paraphrasing certain statements and omitting others,
was sufficiently undermined and called into doubt validity of statements and confession, thus
9
entitling defendant to new trial.

10
Com. v. Waters, 571 N.E.2d 399
11
Mass.,1991
12
Denial of defendant's motion for new trial based on newly discovered evidence of police officer's
13
alleged knowingly false testimony at defendant's trial as part of officer's alleged participation
14
in unlawful police protection payment scheme, was not an abuse of discretion, despite
officer's contrary testimony at intervening perjury trial of officer who allegedly acted as
15
middleman in protection payment scheme, particularly as motion judge was also trial judge.
16
U.S. v. Mackin, 561 F.2d 958

17
C.A.D.C.,1977
18
Facts that key government witness told her probation officer, when partially recanting her prior
19
testimony at murder and robbery trial, that she wanted to “get right with God” and she realized
20 that she had committed perjury at trial, and that when witness talked to her attorney she
knew she was exposing herself to prosecution for perjury did not establish that witness was
21
now a credible witness for purpose of satisfying “Larrison ” test for new trial.
22
State v. Morrow, 528 P.2d 612

23
Ariz.,1974
24
New trial was not required where inconsistencies in police officer's testimony in prosecution
25 for kidnapping and lewd and lascivious conduct were not of such a nature as to convince court
26
that witness was committing or had committed perjury.
27

28
Arnold v. State, 402 S.E.2d 312

240
1
110 CRIMINAL LAW
2
3
110k943 k. Conflicting or contradicted evidence.

4
Ga.App.,1991
5
Inconsistencies in testimony of police officers were not shown to be perjury and did not entitle
6
defendant to new trial; record did not disclose that officers gave wilfully and knowingly
7
false testimony. O.C.G.A. § 24-9-85 .
8

9
People v. Marzed, 613 N.Y.S.2d 826

10
110 CRIMINAL LAW
11

12
13
110k944 k. Credibility.
14
N.Y.City.Crim.Ct.,1993
Weapon possession defendant was entitled to new trial on ground of newly discovered evidence
15
that officer, who had been People's primary witness at trial, had been indicted for perjury
16
allegedly committed in unrelated criminal prosecution; evidence that officer had lied to
17
grand jury in another case would probably have changed verdict at trial, which turned on credibility
18
of officer versus defendant. McKinney's CPL § 330.30, subd. 3 .
19
U.S. v. Custis, 786 F.Supp. 533
20 D.Md.,1992
New trial was necessitated, in interest of justice, by arresting officers' indictments for perjury
21
in unrelated cases; presence or absence of reasonable doubt in jurors' minds could be affected
22
by knowledge of facts that affected credibility of arresting officers. Fed.Rules Cr.Proc.Rule

23
33, 18 U.S.C.A .
24
26
U.S. v. Regan, 47 Fed.Appx. 57
110 CRIMINAL LAW
27

28

241
1
2
110k945(2) k. Particular evidence or cases.
C.A.2.N.Y.,2002
3
District court's denial of new trial following police officer's conviction for perjury was not
4
abuse of discretion, despite newly discovered evidence that officers of city's anti-crime unit
5
had not engaged in misconduct, and that government did not have sufficient evidence to pursue
6
action against anti-crime unit officers under investigation; subject matter of officer's trial
7
had been limited to whether or not he perjured himself before grand jury investigating alleged
8
misconduct, and government had limited itself at trial to that issue. Fed.Rules Cr.Proc.Rule
33, 18 U.S.C.A .
9
U.S. v. Huddleston, 23 F.Supp.2d 72

10
D.Me.,1998
11
Assuming that appropriate standard for determining whether new trial was warranted by
12
newly discovered evidence that government witnesses, unbeknownst to prosecutor, perjured
13
themselves was whether there was reasonable likelihood that verdict could have been different
14
with the newly discovered evidence, defendant was not entitled to new trial based on government
witnesses' perjury concerning their country of origin in drug trial in which defendant alleged
15
that he cooperated with witnesses not to distribute drugs but to set up export business;
16
evidence against defendant, including incriminating comments he made to law enforcement

17
officers after his arrest, was overwhelming.

18
U.S. v. Custis, 786 F.Supp. 533
19
D.Md.,1992
20 New trial was necessitated, in interest of justice, by arresting officers' indictments for perjury
in unrelated cases; presence or absence of reasonable doubt in jurors' minds could be affected
21
by knowledge of facts that affected credibility of arresting officers. Fed.Rules Cr.Proc.Rule

22
33, 18 U.S.C.A .
23
24
25 State v. Hill, 631 A.2d 150
26
110 CRIMINAL LAW
27

28
110 951 Time for Making

242
1
2
N.J.Super.App.,1993
Motorist who had been convicted in Municipal Court of DWI offense based on testimony of
3
police officer who later began to falsify breathalyzer readings failed to present clear, convincing
4
and satisfactory evidence of any perjury by officer in his case, such as might entitle motorist
5
to new trial more than two years after he was convicted. R. 7:4-7.
6
7
8
State v. Joseph, 95 N.E.2d 771
110 CRIMINAL LAW
9

10
11

12
110k957(6) k. Misconduct of others affecting jurors.
13
Ohio.App.2.Dist.Franklin.Co.,1950
14
In prosecution for subornation of perjury, where judge, jurors and officers placed in charge
of jury, after submission of case but before deliberation, dined together, defendant had full
15
right to take affidavits or testimony of jurors as to what transpired, if he believed that he was
16
prejudiced by action of trial judge, since rule that affidavits or testimony of jurors will not be
17
received to impeach their verdict, unless evidence aliunde of irregularity in deliberations of

18
jury or in return of verdict is first shown, has no application where such irregularity is due to
19
misconduct of judge or officer of court. Gen.Code, § 13448-1.
20 References
Communication between court officials or attendants and jurors in criminal trial as ground for
21
mistrial or reversal--post-Parker cases 35 American Law Reports 4th 890 (1985)

22
Disruptive conduct of spectators in presence of jury during criminal trial as basis for reversal,
23
new trial, or mistrial 29 American Law Reports 4th 659 (1984)

24
Emotional manifestations by victim or family of victim during criminal trial as ground for reversal,
25 new trial, or mistrial 31 American Law Reports 4th 229 (1984)
26
Propriety of attorney's communication with jurors after trial 19 American Law Reports 4th
1209 (1983)
27
28

243
1
Wilson v. State, 677 N.E.2d 586
2
110 CRIMINAL LAW
3

4

5
110k958(6) k. Sufficiency of proofs in general.
6
Ind.App.,1997
7
Newly discovered evidence, particularly recantation by victim's former boyfriend of his testimony
8
that he had seen defendant point firearm at victim, warranted new trial on weapons
charges, despite claim that new evidence was merely impeaching, and that boyfriend's affidavit
9
was not worthy of credit; affidavit was credible because it exposed boyfriend to criminal
10
conviction for perjury, and moreover, it was corroborated by two other affidavits stating that
11
boyfriend and victim had “expressed surprise” that police officer's testimony had corroborated
12
their own.
13
People v. Bossert, 772 P.2d 618
14
Colo.,1989
Movant failed to establish that police report allegedly contradicting police officer's testimony
15
and establishing perjury by officer was newly discovered evidence; motion did not state
16
when movant learned of report or whether it was discoverable before trial. Rules Crim.Proc.,
17
Rule 35(c), (c)(2)(V, VI) .

18
19
20 Com. v. Bortner, 98 Dauph. 81

110 CRIMINAL LAW
21

22

23
110k961 k. Determination.
24
Pa.Com.Pl.,1976
25 The court denied motions for a new trial and in arrest of judgment after conviction of defendants,
26
a police officer and tow truck owner and operator allegedly involved in making kickbacks
or payoffs from tow truck operators for the referral of towing business, of perjury before
27
the Pennsylvania Crime Commission, after finding no merit to their various contentions
28
including those relating to consolidation of indictments for trial, lack of authority by the Commission
244
1
to administer oaths, variance between the indictment and the evidence as to the purpose
2
of the payments, admissibility of testimony of defendants given before the Commission
and denial of defendant's pretrial application for discovery of notes of testimony of all witnesses
3
before the Commission.

4
Com. v. Wood, 20 Chest. 158

5
Pa.Com.Pl.,1972
6
Defendant, following conviction by a jury of the crime of perjury in concert with a codefendant
7
(already sentenced), by reason of having falsely and maliciously charged two police
8
officers with a criminal offense, moved for a new trial and in arrest of judgment. Defense
counsel argued that: the verdict was not supported by the law or the evidence, charge of the
9
trial judge had failed to distinguish between credibility and perjury, the defendant should
10
have been permitted to rebut testimony adduced on cross examination of a commonwealth
11
witness, and the content of the Assistant District Attorney's closing argument and the fact of
12
dual representation of both defendants by the same counsel constituted specific violations of
13
defendant's constitutional rights. The court carefully reviewed the pertinent evidence of record
14
and the charge of the court (both specifically and read as a whole), and, applying the rules outlined
above, held that the defendant's motions must be denied.
15
16
17
CONCLUSION
18
Defendant/Appelant Coughlin hereby respectfully requests all Orders, Convictions,
Judgments, Contempt Findings, whatever, stemming from the November 30th, 2011 Trial be Vacated
19
or Set Aside or Reconsidered..
20
21
22
23
the social security number of any person.

24
DATED this 15th Day of December, 2011

25
26
27
_/s/ Zach Coughlin
Zach Coughlin
28
Defendant
245
1
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
246
1
PROOF OF SERVICE
2
I, Zach Coughlin, declare:
3
4
On December 12, 2011, I, Mr. Zach Coughlin served the foregoing Notice of Appeal,
Motion to Vacate and or Set Aside, JCRCP 59, JCRCP 60, Motion for Reconsideration; Motion for
5 Recusal by emailing and faxing and or placing in the mail a true copy thereof to:
6
Pamela G Roberts Company: Reno City Attorney's Office - Criminal Divison Address: P.O. Box
7
1900 Reno , NV 89505 Phone Number: 775-334-2050 Fax number: 775-334-2420 Email:
robertsp@reno.gov
8

10
11
-----------------------------
12
Zach Coughlin
13
Defendant
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
�
�
247
1
INDEX TO EXHIBITS:
1. EXHIBIT 1.
2
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
248
249
250
Berry v. Equitable Gold Min. Co., 91 P. 537
2 228 JUDGMENT
228VII Entry, Record, and Docketing
3 228k271 k. Authority to enter.
Nev.,1907
4 A decree for a perpetual injunction entered by the clerk was void on its face, where it was unsupported
either by the verdict rendered or by an order of the judge directing its entry.
5
6 State ex rel. Newitt v. Fourth Judicial Dist. Court in and for Elko County, 121 P.2d 442
228 JUDGMENT
7 228VII Entry, Record, and Docketing
228k272 k. Time for entry in general.
8 Nev.,1942
The premature entry of a judgment is not a jurisdictional defect and does not avoid the judgment,
9 but at most makes it “irregular” and “voidable”.See publication Words and Phrases for
other judicial constructions and definitions.
10 Schultz v. Winter, 7 Nev. 130
Nev.,1871
11 An order made in the trial of an issue at law, if a final judgment, may be entered in term or vacation;
but such an order, made in vacation, can have no vitality until, at least, it is delivered
12 to the clerk for filing.

McClintock v. McClintock, 138 P.3d 513
14 228 JUDGMENT
15 228 273 Entry Nunc Pro Tunc
16 Nev.,2006
District court may not use a nunc pro tunc order to change a judgment actually rendered to
17 one which the court neither rendered nor intended to render.
Smith v. Epperson, 294 P.2d 362
18 Nev.,1956
Object and purpose of nunc pro tunc order is to make record speak truth concerning acts
19 already done. Rules of Civil Procedure, rule 60(a, b).
Allen v. Allen, 270 P.2d 671
20 Nev.,1954
Question whether nunc pro tunc order should be made depends upon circumstances of particular
21 case, and it is to be granted or refused as justice may require.
Finley v. Finley, 189 P.2d 334
22 Nev.,1948
The object of a “nunc pro tunc” order is to make a record speak the truth concerning acts
23 done, and such order cannot be made use of nor resorted to to supply omitted action.See publication
Words and Phrases for other judicial constructions and definitions.
24 Finley v. Finley, 189 P.2d 334
Nev.,1948
25 The power to order entry of judgment nunc pro tunc cannot be used to correct judicial errors
or omissions, nor to change judgment actually rendered to one which the court neither
26 rendered nor intended to render.
Talbot v. Mack, 169 P. 25
27 Nev.,1917
The object and purpose of a nunc pro tunc order is to make a record speak the truth concerning
28 acts already done, and not to supply an omitted action.
251
Ewing v. Jennings, 15 Nev. 379
2 228 JUDGMENT
228k273(2) k. Failure to enter judgment at time of rendition.
4 Nev.,1880
Where a clerk fails to enter a judgment ordered by the court, it is within the power of the court
5 to order the judgment to be entered nunc pro tunc.

Finley v. Finley, 189 P.2d 334
7 228 JUDGMENT
228k273(3) k. Errors or irregularities in previous entry.
9 Nev.,1948
Court, in entering a judgment nunc pro tunc, may in its discretion rely on its memory as to
10 what was actually done and may refresh its memory from any source it deems reliable.

Ewing v. Jennings, 15 Nev. 379
12 228 JUDGMENT
228k273(4) k. Existence of previous judgment or order.
14 Nev.,1880
A judgment roll containing the agreement and order for judgment and the minutes of the court
15 is competent evidence, tending to establish the facts necessary to authorize the court to enter a
judgment nunc pro tunc.
16
17 Culinary and Hotel Service Workers Union, Local No. 226 v. Haugen, 357 P.2d 113
228 JUDGMENT
228k276 k. Proceedings for entry.
19 Nev.,1960
District court rule was entitled to encouragement of Supreme Court; but correction of notice
20 of entry of judgment, by lining out “April” with typewriter and inserting “May”, did not destroy
effectiveness of notice, even if such correction constituted an “interlineation” in violation
21 of district court rule. District Court Rules, rules 2, subd. 6, 19; Supreme Court Rules, rule 2,
subd. 8; NRCP 6(b).
22
23 First Nat. Bank v. Abel, 41 P.2d 1061
228 JUDGMENT
228 277 Judgment Roll or Record
25 228k279 k. Matters included.
Nev.,1935
26 Copy of judgment, striking amended complaint and dismissing action, filed by the clerk became
part of “judgment roll”. Comp.Laws 1929, § 8829.See publication Words and Phrases
27 for other judicial constructions and definitions.
Glock v. Elges, 159 P. 629
28 Nev.,1916
Judgment roll includes pleadings and judgment.
252
1
2 Burbank v. Rivers, 18 P. 753
228 JUDGMENT
228k286 k. Defects and objections.
4 Nev.,1888
Where the clerk, in entering an order overruling defendant's motion for a new trial, enters defendant's
5 name as “Henry Rives” and “Henry Rivers,” instead of “Frank Rivers,” defendant is
bound to take notice that the order was meant for his case.
6
7 Blasdel v. Kean, 8 Nev. 305
228 JUDGMENT
228k287 k. Effect of entry and record as between parties in general.
9 Nev.,1873
Finding and recital of a legal service of summons in a judgment is as much a part of the record,
10 and entitled to the same credence, as the file marks of the clerk anterior to such service.

Bowers v. Edwards, 385 P.2d 783
12 228 JUDGMENT
13 228k289 k. Conflict in record.
Nev.,1963
14 Where there is conflict between minute order and judgment, the judgment prevails.
Bushard v. Washoe County, 229 P.2d 156
15 Nev.,1951
Where minute order of decision of trial court is at variance with formal judgment filed thereafter,
16 the formal judgment must prevail.
Mortimer v. Pacific States Sav. & Loan Co., 145 P.2d 733
17 Nev.,1944
Where there is conflict between a minute order and a judgment, the latter prevails.
18 Mortimer v. Pacific States Sav. & Loan Co., 145 P.2d 733
Nev.,1944
19 A formal written order allowing fees to a receiver's attorney and reserving to trial court the
right to consider any additional allowance was not ambiguous so as to be governed by minute
20 order allowing fees for the calendar year and reserving to trial court the right to fix future fees
for future services.
21 Blasdel v. Kean, 8 Nev. 305
Nev.,1873
22 Every legal intendment is in favor of the validity of a judgment, where there is a conflict in
the record as to due service of summons.
23
American Jurisprudence, Second Edition
24 Database updated November 2011
Judgments
25 Christina (Uranza) Crimi, J.D.; Laura Hunter Dietz, J.D.; Tracy Farrell, J.D.; Alan J. Jacobs,
J.D.; Rachel Kane, J.D.; William Lindsley, J.D.; Jeff J. Shampo, J.D.; Eric Surette, J.D.; and
26 Suzanne L. Bailey, J.D., Thomas J. Czelusta, J.D., and John R. Kennel, J.D. of the National
Legal Research Group, Inc.
27 II. Rendition
A. General Considerations
28 1. In General
Topic Summary Correlation Table References
253
1 § 59. Manner of pronouncement
West's Key Number Digest
2 West's Key Number Digest, Federal Civil Procedure 2621
West's Key Number Digest, Judgment 191, 215
3 A rendition of judgment can occur in more than one manner.[1] In some jurisdictions,
rendition of judgment is the court's pronouncement by spoken word in open court or by written
4 order filed with the clerk of its decision upon the matter submitted to it for adjudication.[2
] It is also said that rendition of judgment occurs when the court makes an oral pronouncement
5 in open court and accompanies that pronouncement with a notation on the trial docket or, in
the alternative, when some written notation of the judgment is filed in the records of the
6 court.[3] Accordingly, in some jurisdictions an oral manifestation of the decision is regarded
as sufficient for a judgment at law to become operative.[4] For the trial court to effectively
7 render judgment in open court, it must do so in spoken word, not in mere cognition,[5] and the
trial court's oral pronouncement must clearly indicate the intent to render judgment at the time
8 the words are expressed.[6] Where oral rendition of a judgment is proper, if the trial court
signs a judgment on an issue without first making an oral pronouncement in open court, the
9 act of signing the judgment is the official act of rendering judgment.[7] When a trial court orally
renders a judgment that disposes of some of the issues in a party's pleading, but is silent
10 on others, a later signed judgment that disposes of an additional issue, while only a "written
memorandum" of the oral judgment, is a rendition of judgment on the issue addressed for the
11 first time in the written judgment.[8]
Caution:
12 An announcement of judgment in open court merely constitutes a rendering of the judgment,
not an entry of judgment.[9]
13 46 Am. Jur. 2d Judgments § 59
In other jurisdictions, however, mere oral pronouncement by the court of its decision is not
14 the rendition of a judgment,[10] and it has been said that a trial court's oral pronouncement is
not a judgment until it is put in writing and entered as the judgment,[11] that a judge does not
15 render the judgment until he or she signs a written notation of the relief granted or denied,[12]
and that a judgment is not rendered until it is signed.[13] Among the reasons stated for not recognizing
16 an oral pronouncement by the court as the rendition of judgment are that: (1) there
is no practical manner in which to execute an oral judgment; (2) an oral judgment cannot be
17 filed in the court of another county or state; and (3) there is no mechanism by which an oral
judgment can become a lien on the property of the judgment debtor.[14]
18 Observation:
Prior to the entry of a final judgment, a court remains free to reconsider and issue a written
19 judgment different from its oral pronouncement.[15]
CUMULATIVE SUPPLEMENT
20 Cases:
The mere oral announcement of a judgment without an entry on the trial docket is not the
21 rendition of a judgment, for the purposes of appeal; for a final judgment to exist, there must be
an order that is both signed by the court and filed stamped and dated by the clerk of the court.
22 Kilgore v. Nebraska Dept. of Health and Human Services, 277 Neb. 456, 763 N.W.2d 77
(2009).
23 [END OF SUPPLEMENT]
[FN1] Hornig v. Martel Lift Systems, Inc., 258 Neb. 764, 606 N.W.2d 764 (2000).
24 [FN2] Jones v. Hubbard, 356 Md. 513, 740 A.2d 1004 (1999); Barton v. Gillespie,
2005 WL 1540156 (Tex. App. Houston 1st Dist. 2005).
25 [FN3] Hornig v. Martel Lift Systems, Inc., 258 Neb. 764, 606 N.W.2d 764 (2000).
Although a judgment is rendered and exists as such when it is orally announced from
26 the bench, and before it has been reduced to writing and entered by the clerk, as a general
rule a judgment must be reduced to writing. Bauman v. Maple Valley Community
27 School Dist., 649 N.W.2d 9 (Iowa 2002).
[FN4] U.S. v. Hunt, 513 F.2d 129 (10th Cir. 1975); Gordon v. Gordon, 390 S.W.2d
28 583 (Mo. Ct. App. 1965); Wittau v. Storie, 145 S.W.3d 732 (Tex. App. Fort Worth
2004).
254
1 [FN5] James v. Hubbard, 21 S.W.3d 558 (Tex. App. San Antonio 2000).
[FN6] In re A.B., 125 S.W.3d 769 (Tex. App. Texarkana 2003), review denied, (Mar.
2 19, 2004).
[FN7] Wittau v. Storie, 145 S.W.3d 732 (Tex. App. Fort Worth 2004).
3 [FN8] Wittau v. Storie, 145 S.W.3d 732 (Tex. App. Fort Worth 2004).
[FN9] Santana v. Santana, 614 S.E.2d 438 (N.C. Ct. App. 2005).
4 As to entry of judgment distinguished, see § 60.
[FN10] Rust v. Clark County School Dist., 103 Nev. 686, 747 P.2d 1380, 44 Ed. Law
5 Rep. 736 (1987); Montano v. Encinias, 103 N.M. 515, 709 P.2d 1024 (1985); Sparkle
Laundry & Cleaners, Inc. v. Kelton, 595 S.W.2d 88, 28 U.C.C. Rep. Serv. 1531 (Tenn.
6 Ct. App. 1979).
[FN11] Stoker v. Bellemeade, LLC, 272 Ga. App. 817, 615 S.E.2d 1 (2005), cert.
7 denied, (Sept. 19, 2005).
[FN12] Mumin v. Hart, 9 Neb. App. 404, 612 N.W.2d 261 (2000).
8 [FN13] State ex rel. A.S.K., 775 So. 2d 1101 (La. Ct. App. 4th Cir. 2000).
[FN14] McAteer v. Stewart, 696 P.2d 72 (Wyo. 1985).
9 As to judgment liens, see §§ 342 to 384.
[FN15] Rust v. Clark County School Dist., 103 Nev. 686, 747 P.2d 1380, 44 Ed. Law
10 Rep. 736 (1987).
© 2011 Thomson Reuters. 33-34B © 2011 Thomson Reuters/RIA. No Claim to Orig. U.S.
11 Govt. Works. All rights reserved.
AMJUR JUDGMENTS § 59
12
American Jurisprudence, Second Edition
13 Database updated November 2011
New Trial
14 John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.
V. Procedure
15 B. Time for Making Application
3. Under Federal Rules of Civil Procedure
16 Topic Summary Correlation Table References
§ 379. Commencement of period
17 West's Key Number Digest
West's Key Number Digest, New Trial 116.2
18 A.L.R. Library
Motions for new trial:time limitations under Rule 59(b) of Federal Rules of Civil Procedure,
19 45 A.L.R. Fed. 104
The 10-day period under the provision of the Federal Rules of Civil Procedure pertaining
20 to the time for making new trial motions[1] commences to run from the entry of a final judgment,[
2] not from the rendition of an interlocutory judgment.[3]
21 Practice Guide:
The 10-day period is to be computed in accordance with the provision of the Federal Rules of
22 Civil Procedure governing the computation of time generally.[4]
An amended judgment supersedes a prior judgment, so that the 10-day period begins to
23 run anew after entry of the amended judgment.[5]
[FN1] Fed. R. Civ. P. 59(b).
24 [FN2] Sawyer v. Atlantic Discount Corp., 442 F.2d 349 (4th Cir. 1971); Ishikawa v.
Acheson, 90 F. Supp. 713 (D. Haw. 1950).
25 The 10-day period for the serving of a motion for a new trial began to run upon entry
or docketing of the judgment, rather than from the filing of the judgment. Tijerina v.
26 Plentl, 984 F.2d 148, 24 Fed. R. Serv. 3d 1289 (5th Cir. 1993).
58 Am. Jur. 2d New Trial § 379
27 [FN3] Warner v. Rossignol, 513 F.2d 678 (1st Cir. 1975); Manos v. Trans World Airlines,
Inc., 324 F. Supp. 470 (N.D. Ill. 1971).
28 [FN4] Fed. R. Civ. P. 6(a).
[FN5] Cornist v. Richland Parish School Bd., 479 F.2d 37 (5th Cir. 1973).
255
1 © 2011 Thomson Reuters. 33-34B © 2011 Thomson Reuters/RIA. No Claim to Orig. U.S.
Govt. Works. All rights reserved.
2 AMJUR NEWTRIAL § 379
3 Corpus Juris Secundum

Database updated December 2011
4 Judgments
Francis C. Amendola, J.D., Paul M. Coltoff, J.D., John Glenn, J.D., Janice Holben, J.D., John
5 R. Kennel, J.D., of the staff of the National Legal Research Group, Inc., Eric Larsson, J.D.,
Stephen Lease, J.D., Jack K. Levin, J.D., William Lindsley, J.D., Lucas Martin, J.D., Eric
6 Mayer, J.D., Tom Muskus, J.D., Karl Oakes, J.D., Eric C. Surette, J.D., Alan Wasserstrom,
J.D., Alan Weinstein, J.D.
7 VII. Rendition, Entry, Record, and Docketing
B. Entry of Judgment
8 Topic Summary References Correlation Table
§ 144. Necessity
West's Key Number Digest, Judgment 270
10 West's Key Number Digest, Judgment 293
Although as between the parties a duly rendered judgment may be valid and effective
11 without entry, and its enforcement does not always depend on its entry, for many purposes
judgments are not complete, perfect, and effective until they are entered.
12 As a general rule, the decisions of all courts must be preserved in writing in some record
provided for that purpose.[1]
13 As between the parties, a judgment duly rendered may be valid and effective, although not
entered, that is, the clerk's neglect or failure to make a proper entry of the judgment, or defective
14 or inaccurate entry of it, at least in the absence of statute to the contrary, will not deprive it
of the force of a judicial decision.[2] The enforcement of a judgment does not depend on its
15 entry.[3]
However, for many purposes a judgment is not complete, perfect, and effective until it has
16 been duly entered.[4] Thus, it has been broadly held that judgments take effect only from the
date of entry[5] and that there is no judgment until it is entered of record.[6]
17 A rule governing rendition and entry of judgments and orders obliterates any distinction
between the ministerial act of entry and the judicial act of rendition of judgment and makes
18 the operative event the act of the judge.[7]
Entry of a judgment may be required within which the judgment may be enforced, as considered[
19 8] or for the creation of a judgment lien.[9]
49 C.J.S. Judgments § 144
20 A judgment is not final, in the sense that it cannot be withdrawn or changed by the court,
until it has been entered.[10] On entry, a judgment passes beyond control of the court, except
21 to vacate or modify it in accordance with the usual rules.[11]
In order that a judgment may be admitted as evidence in another action, it is necessary that
22 it should first have been entered of record.[12]
[FN1] Fla.—Magnant v. Peacock, 156 Fla. 688, 24 So. 2d 314 (1945).
23 Ky.—National Life & Acc. Ins. Co. v. Hedges, 233 Ky. 840, 27 S.W.2d 422 (1930).
Miss.—Evans v. State, 144 Miss. 1, 108 So. 725 (1926).
24 N.J.— Lyczak v. Margulies, 8 N.J. Misc. 549, 151 A. 64 (Sup. Ct. 1930), aff'd, 109
N.J.L. 352, 162 A. 590 (N.J. Ct. Err. & App. 1932).
25 As to necessity for entry of judgments by confession, see § 218.
As to necessity for writing, see § 106.
26 [FN2] Ga.—Deck v. Deck, 193 Ga. 739, 20 S.E.2d 1 (1942).
Ill.—Cirro Wrecking Co. v. Roppolo, 153 Ill. 2d 6, 178 Ill. Dec. 750, 605 N.E.2d 544
27 (1992).
Ind.—Tancos v. A.W., Inc., 502 N.E.2d 109 (Ind. Ct. App. 1986).
28 Mo.—Marsden v. Nipp, 325 Mo. 822, 30 S.W.2d 77 (1930).
Ohio— Hower Corp. v. Vance, 144 Ohio St. 443, 30 Ohio Op. 38, 59 N.E.2d 377
256
1 (1945).
Okla.—Depuy v. Hoeme, 1989 OK 42, 775 P.2d 1339 (Okla. 1989).
2 Tex.—Mayfield v. San Jacinto Sav. Ass'n, 788 S.W.2d 119 (Tex. App. Houston 14th
Dist. 1990), writ denied, (July 3, 1990).
3 [FN3] Conn.—D'Andrea v. Rende, 123 Conn. 377, 195 A. 741 (1937).
Kan.—Gates v. Gates, 160 Kan. 428, 163 P.2d 395 (1945).
4 [FN4] U.S.—In re Bunt, 165 B.R. 894 (Bankr. E.D. Ark. 1994)—In re Cimarron Nursing
Center, 143 B.R. 578, 18 U.C.C. Rep. Serv. 2d 965 (Bankr. W.D. Okla. 1992).
5 Ark.— Koelzer v. Bagley, 13 Ark. App. 48, 680 S.W.2d 111, 22 Ed. Law Rep. 574
(1984).
6 Cal.—In re Marriage of Micalizio, 199 Cal. App. 3d 662, 245 Cal. Rptr. 673 (4th Dist.
1988).
7 Fla.—Cincinnati Equitable Ins. Co. v. Hawit, 933 So. 2d 1233 (Fla. Dist. Ct. App. 3d
Dist. 2006).
8 Ga.—Zeitman v. McBrayer, 201 Ga. App. 767, 412 S.E.2d 287 (1991).
Ill.—O'Grady v. Cook County Sheriff's Merit Bd., 204 Ill. App. 3d 258, 149 Ill. Dec.
9 530, 561 N.E.2d 1226 (1st Dist. 1990).
Kan.—Matter of Marriage of Wilson, 13 Kan. App. 2d 291, 768 P.2d 835 (1989), judgment
10 aff'd, 245 Kan. 178, 777 P.2d 773 (1989).
Ohio—Lamar v. Marbury, 69 Ohio St. 2d 274, 23 Ohio Op. 3d 269, 431 N.E.2d 1028
11 (1982).
Tex.—Ranier v. Brown, 623 S.W.2d 682 (Tex. Civ. App. Houston 1st Dist. 1981).
12 [FN5] Ariz.—Southwestern Freight Lines v. Shafer, 57 Ariz. 111, 111 P.2d 625 (1941)
.
13 Cal.—Lind v. Baker, 48 Cal. App. 2d 234, 119 P.2d 806 (4th Dist. 1941).
N.M.—State v. Capital City Bank, 31 N.M. 430, 246 P. 899 (1926).
14 As to date of judgment, see § 149.
[FN6] Alaska—Wallace v. Turner, 2004 WL 1588225 (Alaska 2004).
15 Fla.—Magnant v. Peacock, 156 Fla. 688, 24 So. 2d 314 (1945).
Ga.—Titelman v. Stedman, 277 Ga. 460, 591 S.E.2d 774 (2003).
16 Ill.—In Interest of K.S., 250 Ill. App. 3d 862, 189 Ill. Dec. 530, 620 N.E.2d 498 (4th
Dist. 1993).
17 Ky.—Batts v. Illinois Cent. R. Co., 217 S.W.3d 881 (Ky. Ct. App. 2007).
Md.—Tierco Maryland, Inc. v. Williams, 381 Md. 378, 849 A.2d 504 (2004).
18 Miss.—Smith v. Parkerson Lumber, Inc., 890 So. 2d 832 (Miss. 2003).
N.C.—Hilliard v. Hilliard, 146 N.C. App. 709, 554 S.E.2d 374 (2001).
19 Neb.—Rosen Auto Leasing, Inc. v. Jordan, 15 Neb. App. 1, 720 N.W.2d 911 (2006).
N.M.—Quintana v. Vigil, 46 N.M. 200, 125 P.2d 711 (1942) (overruled by, Evans Financial
20 Corp. v. Strasser, 99 N.M. 788, 664 P.2d 986 (1983)).
Ohio— Hower Corp. v. Vance, 144 Ohio St. 443, 30 Ohio Op. 38, 59 N.E.2d 377
21 (1945).
Or.—Patrick v. Otteman, 158 Or. App. 175, 974 P.2d 217 (1999).
22 Pa.—Clinton v. Giles, 719 A.2d 314 (Pa. Super. Ct. 1998).
Tenn.—Blackburn v. Blackburn, 270 S.W.3d 42 (Tenn. 2008).
23 Tex.—In re Bill Heard Chevrolet, Ltd., 209 S.W.3d 311 (Tex. App. Houston 1st Dist.
2006).
24 W.Va.— State ex rel. West Virginia Dept. Of Health And Human Resources, Child
Support Enforcement Division v. Varney, 221 W. Va. 517, 655 S.E.2d 539 (2007).
25 Effect of failure
The rule governing proposed orders or judgments submitted for the court's signature,
26 and providing that a failure to submit a judgment timely is deemed abandonment,
speaks to the period within which a proposed order or judgment reflecting the disposition
27 of a motion or matter must be drawn by a party, and does not apply to service of
the judgment with notice of entry upon an opposing party.
28 N.Y.—Cox v. City Of Niagara Falls, 289 A.D.2d 978, 734 N.Y.S.2d 802 (4th Dep't
2001).
257
1 [FN7] Ala.—Smith v. Jackson, 770 So. 2d 1068 (Ala. 2000).
[FN8] §§ 1265, 1369, 1370.
2 [FN9] § 776.
[FN10] Cal.—In re Marriage of Micalizio, 199 Cal. App. 3d 662, 245 Cal. Rptr. 673
3 (4th Dist. 1988).
Ill.—In re Marriage of Dwan, 108 Ill. App. 3d 808, 64 Ill. Dec. 340, 439 N.E.2d 1005
4 (1st Dist. 1982).
Nev.—Rust v. Clark County School Dist., 103 Nev. 686, 747 P.2d 1380, 44 Ed. Law
5 Rep. 736 (1987).
N.M.—Quintana v. Vigil, 46 N.M. 200, 125 P.2d 711 (1942) (overruled by, Evans Financial
6 Corp. v. Strasser, 99 N.M. 788, 664 P.2d 986 (1983)).
Ohio—Atkinson v. Grumman Ohio Corp., 37 Ohio St. 3d 80, 523 N.E.2d 851 (1988).
7 Okla.—Depuy v. Hoeme, 1989 OK 42, 775 P.2d 1339 (Okla. 1989).
[FN11] Okla.—Depuy v. Hoeme, 1989 OK 42, 775 P.2d 1339 (Okla. 1989).
8 Tenn.— Broadway Motor Co. v. Public Fire Ins. Co., 12 Tenn. App. 278, 1930 WL
1696 (1930).
9 [FN12] Ala.—Mt. Vernon-Woodberry Mills v. Union Springs Guano Co., 229 Ala. 91,
155 So. 716 (1934).
10 Neb.—Luikart v. Bredthauer, 132 Neb. 62, 271 N.W. 165 (1937).
Okla.—Depuy v. Hoeme, 1989 OK 42, 775 P.2d 1339 (Okla. 1989).
11 Westlaw. © 2011 Thomson Reuters. No Claim to Orig. U.S. Govt. Works.
CJS JUDGMENTS § 144
12
Corpus Juris Secundum
13 Database updated December 2011
Appeal and Error
14 Paul M. Coltoff, J.D., John Glenn, J.D., Glenda K. Harnad, J.D. of the staff of the National
Legal Research Group, Inc., John R. Kennel, J.D., of the staff of the National Legal Research
15 Group, Inc., Michele Hughes, J.D., Anne Knickerbocker, J.D., Jack K. Levin, J.D., Thomas
Muskus, J.D., Kimberly C. Simmons, J.D., Eric C. Surette, J.D., Barbara Van Arsdale, J.D.,
16 Elizabeth Williams, J.D.
VIII. Requisites and Proceedings for Transfer of Cause
17 G. Entry or Docketing
Topic Summary References Correlation Table
18 § 500. Generally
19 West's Key Number Digest, Appeal and Error 431
Under some statutes or rules of court, the appeal or writ of error must be properly entered,
20 recorded, or docketed in order to perfect the appellate proceedings.
Under some statutes or rules, entry, recording, or docketing in the appellate court is necessary
21 to perfect the appeal.[1]
The requirement of docketing is not jurisdictional[2] and where an appellant has done all
22 that is required of him or her to procure an entry of the appeal, the clerk's failure to enter it
will not cause a dismissal or otherwise affect the appellant's rights.[3]
23 An appellee may waive the required diligence in entering or docketing the appeal.[4]
Waiver of an insufficient entry, or of delay in entering or docketing may be implied from subsequent
24 action on the appellee's part inconsistent with an intention to take advantage of the insufficiency
or delay.[5] An estoppel to claim an insufficient entry may be established by such
25 words or acts on the part of appellee as will reasonably justify the appellant, through reliance
on the words or acts, in refraining from entering his or her appeal.[6]
26 [FN1] Fla.—Brooks v. Miami Bank & Trust Co., 115 Fla. 141, 155 So. 157 (1934).
La.—Queen Ins. Co. of America v. Blomenstiel, 160 So. 169 (La. Ct. App. 1st Cir.
27 1935).
Mass.—Marshall v. Stratus Pharmaceuticals, Inc., 51 Mass. App. Ct. 667, 749 N.E.2d
28 4 C.J.S. Appeal and Error § 500
698 (2001).
258
1 Filing
Me.—Persson v. Department of Human Services, 2001 ME 124, 775 A.2d 363 (Me.
2 2001).
[FN2] Ala.—H.C. Schmieding Produce Co., Inc. v. Cagle, 529 So. 2d 243, 7 U.C.C.
3 Rep. Serv. 2d 676 (Ala. 1988).
[FN3] Colo.—People ex rel. Denver Engineers' Supply Co. v. District Court of City
4 and County of Denver, 33 Colo. 416, 80 P. 1069 (1905).
N.C.—Simmons v. Allison, 119 N.C. 556, 26 S.E. 171 (1896).
5 [FN4] Fla.—Garrison v. Parsons, 41 Fla. 143, 25 So. 336 (1899).
[FN5] Minn.—In re Brady's Estate, 70 Minn. 437, 73 N.W. 145 (1897).
6 [FN6] Minn.—In re Brady's Estate, 70 Minn. 437, 73 N.W. 145 (1897).
Ohio—King v. Penn, 43 Ohio St. 57, 1 N.E. 84 (1885).
CJS APPEALERR § 500
8
Corpus Juris Secundum
9 Database updated December 2011
Executions
10 Glenda K. Harnad, J.D., of the staff of the National Legal Research Group, Inc., Alan J. Jacobs,
J.D., Eric Mayer, Tom Muskus, J.D., Karl Oakes, J.D., Jeffrey J. Shampo, J.D.
11 I. In General
B. Judgment, Decree, or Order as Basis of Writ
§ 22. Rendition and entry of docketing
West's Key Number Digest, Execution 9
14 While in some jurisdictions an official entry or docketing is a condition precedent to the
right to the writ, in others such entry or docketing is not essential to enable a party to issue an
15 execution on a judgment that has been duly rendered.
While the entry or docketing of a judgment is necessary to create a lien,[1] at common law
16 an execution is issuable on the signing of a final judgment and before its entry of record,
providing there is no writ of error pending or agreement to the contrary,[2] and, in many jurisdictions,
17 such entry or docketing is not essential to enable a party to issue an execution thereon
if the judgment otherwise has been duly rendered.[3] Moreover, the failure of the clerk to
18 enter of record the judgment rendered within any particular time does not render invalid an
execution valid when issued.[4] Where statutes so provide, entry of the verdict in the minutes
19 will sustain an execution issued before entry of the judgment.[5]
In some jurisdictions, on the other hand, by virtue of statutes or otherwise, an official
20 entry or docketing is a condition precedent to the right to the writ,[6] especially where the
judgment is by confession.[7] Statutes requiring entry of judgment as a condition precedent do
21 not, however, include making up the judgment roll,[8] and the general rule is that execution
may issue before filing or making up the judgment roll,[9] but such a requirement is not universal.[
22 10] If the statute merely requires an entry of the judgment, it has been found that it
need not be docketed.[11]
23 Time of entry and effect of failure to enter.
The time when the judgment must be entered, where necessary, is generally regulated by
24 statutory provisions, and filing within such time will permit issuance of execution.[12] An
entry nunc pro tunc is sufficient to support and validate an execution, and the irregularity of
25 issuing execution before entry of judgment generally may be cured by subsequent entry of the
judgment.[13] In addition, for the purpose of the validity of an execution, a judgment entered
26 33 C.J.S. Executions § 22
in term time will be presumed to have been entered during the actual session of the court,[14]
27 and a failure to make formal entry is an irregularity that may be waived by failing to make a
motion to vacate until several months after the execution has been issued.[15] Generally, the
28 failure formally to enter or docket the judgment before issuing execution renders the execution
voidable only,[16] although where the entry is essential to the existence of a valid judgment,
259
1 an execution issued prior thereto is void.[17]
Defective entry.
2 Where the amount of the judgment inadvertently is omitted from the judgment entry, a
correction nunc pro tunc validates an execution previously issued.[18]
3 Registered judgment.
Where a judgment is registered for the purpose of creating a lien, the execution is nevertheless
4 issued on the original judgment.[19]
[FN1] C.J.S., Judgments § 562.
5 [FN2] N.M.—Gonzalez v. Gonzalez, 103 N.M. 157, 703 P.2d 934 (Ct. App. 1985).
[FN3] La.—Montelepre, Inc. v. Pfister, 355 So. 2d 654 (La. Ct. App. 4th Cir. 1978).
6 Mo.—Fielder v. Fielder, 671 S.W.2d 408 (Mo. Ct. App. E.D. 1984).
[FN4] Ill.—People ex rel. Holbrook v. Petit, 266 Ill. 628, 107 N.E. 830 (1915).
7 [FN5] N.J.—Epps v. Bowen, 118 N.J.L. 50, 191 A. 110 (N.J. Sup. Ct. 1937).
[FN6] U.S.—Henry v. First Nat. Bank of Clarksdale, 595 F.2d 291 (5th Cir. 1979).
8 Iowa—Arbie Mineral Feed Co., Inc. v. Farm Bureau Mut. Ins. Co., 462 N.W.2d 677
(Iowa 1990).
9 [FN7] Ill.—Knights v. Martin, 155 Ill. 486, 40 N.E. 358 (1895).
[FN8] Mont.—Burton v. Kipp, 30 Mont. 275, 76 P. 563 (1904).
10 [FN9] Cal.—Sharp v. Lumley, 34 Cal. 611, 1868 WL 736 (1868).
[FN10] N.Y.—Blashfield v. Smith, 27 Hun 114 (N.Y. Gen. Term 1882).
11 [FN11] Wis.—Hyman v. Landry, 135 Wis. 598, 116 N.W. 236 (1908).
[FN12] U.S.—In re Bhatti, 126 B.R. 229 (Bankr. W.D. Va. 1991).
12 Ala.—Jefferson County Sav. Bank v. Miller, 145 Ala. 237, 40 So. 513 (1906).
[FN13] Iowa—Doughty v. Meek, 105 Iowa 16, 74 N.W. 744 (1898).
13 [FN14] Ill.—Hansen v. Schlesinger, 125 Ill. 230, 17 N.E. 718 (1888).
[FN15] N.Y.—Bowman v. Tallman, 19 Abb. Pr. 84, 26 N.Y. Super. Ct. 633, 28 How.
14 Pr. 482, 1864 WL 3730 (1864).
[FN16] S.C.— Mason & Risch Vocalion Co. v. Killough Music Co., 45 S.C. 11, 22
15 S.E. 755 (1895).
[FN17] Ill.—Knights v. Martin, 155 Ill. 486, 40 N.E. 358 (1895).
16 [FN18] Iowa—Brooks v. Owen, 200 Iowa 1151, 202 N.W. 505 (1925), opinion modified
on other grounds on denial of reh'g, Brooks v. Owen., 206 N.W. 149 (Iowa 1925).
17 Memorandum of judgment invalid
A memorandum of judgment filed by the assignee of the judgment creditor was invalid,
18 and could not be used as the basis for a levy sale of the judgment debtor's property
on a judgment lien, where the memorandum contained an inaccurate judgment amount
19 in that it failed to apply the $7,000 judgment the debtor paid on the judgment.
Ill.—Northwest Diversified, Inc. v. Desai, 353 Ill. App. 3d 378, 288 Ill. Dec. 818, 818
20 N.E.2d 753 (1st Dist. 2004).
Interest on judgment
21 The clerk's failure to compute interest owing on the judgment, and to enter it on the
copy of a judgment he received from the court, was a mere clerical error that did not
22 impair the judgment or prevent the judgment creditor from executing thereon following
an amendment to correct the clerk's omission.
23 N.Y.— Aetna Cas. & Sur. Co. v. Whitestone General Hosp., 142 Misc. 2d 67, 536
N.Y.S.2d 373 (Sup 1988).
24 [FN19] Ala.—Jefferson County Sav. Bank v. Miller, 145 Ala. 237, 40 So. 513 (1906).
Westlaw. © 2011 Thomson Reuters. No Claim to Orig. U.S. Govt. Works.
25 CJS EXECUTIONS § 22

27 Judgments
260
2 XIV. Collateral Attack
D. Grounds
3 3. Errors and Irregularities
Topic Summary References Correlation Table
4 § 737. Defects in entry or contents of judgment
5 West's Key Number Digest, Judgment 504(3)
West's Key Number Digest, Judgment 504(4)
Mere irregularities in the rendition or entry of judgments, including judgments by confession
7 or consent, are not grounds for collateral attack.
A decree rendered in advance of the period at which the court may lawfully acquire jurisdiction
8 over the defendant is subject to collateral attack.[1] However, where no question of
jurisdiction is raised, a judgment or decree cannot be collaterally impeached because it was
9 prematurely rendered,[2] or not rendered within the time required by statute,[3] or because it
was based on defective findings by the court, or given without any findings at all[4] or is inconsistent
10 with the findings or conclusions of law.[5] Moreover, a judgment may not be attacked
collaterally because it appears from the record or the opinion of the court that there
11 was a mistake, and that the judgment should have been different from that actually rendered,[6
] or because of any irregularity in the entry, record, or docketing of the judgment,[7] or for
12 any informality or incompleteness in the judgment itself, provided its defects or omissions are
not such as to render it absolutely unintelligible and therefore void for uncertainty.[8]
13 The alleged noncompliance of a judgment with a settlement agreement does not render it
subject to collateral attack.[9]
14 Judgment beyond pleadings and issues.
According to some authority, where the court goes beyond and outside the pleadings and
15 issues and assumes to adjudicate a matter not within the issues made up in the pleadings, and
16 the judgment is to that extent void, the judgment may be attacked collaterally.[10]
Excessive recovery or relief.
17 Where a judgment is merely erroneous because it is excessive,[11] either as being greater
than the amount demanded,[12] greater than the facts or the evidence would justify,[13] or as
18 improperly including interest,[14] penalties,[15] costs,[16] or counsel fees,[17] or as allowing
excessive interest[18] or costs,[19] it may not be impeached in a collateral proceeding.
19 [FN1] D.C.—Morse v. U.S., 29 App. D.C. 433, 1907 WL 19758 (App. D.C. 1907).
[FN2] Colo.—Netland v. Baughman, 114 Colo. 148, 162 P.2d 601 (1945).
20 Or.—Booth v. Heberlie, 137 Or. 354, 2 P.2d 1108 (1931).
Tenn.—Davis v. Mitchell, 27 Tenn. App. 182, 178 S.W.2d 889 (1943).
21 As to the form, contents, rendition, entry, record, and docketing of judgment, see §§
104 to 130, 136 to 169.
22 Judgment erroneously or irregularly entered
A party to a proceeding will be bound by the judgment in the case when collaterally attacking
23 it, even though the judgment was irregularly or erroneously entered.
Neb.—State v. Head, 276 Neb. 354, 754 N.W.2d 612 (2008).
24 Voidable judgment
A “voidable judgment” is one entered erroneously by a court having jurisdiction, and
25 is not subject to collateral attack.
Ill.— In re Marriage of Mitchell, 181 Ill. 2d 169, 229 Ill. Dec. 508, 692 N.E.2d 281
26 (1998).
[FN3] S.D.—Harker v. Cowie, 42 S.D. 159, 173 N.W. 722 (1919).
27 [FN4] Ark.—Brooks v. Baker, 208 Ark. 654, 187 S.W.2d 169 (1945).
N.Y.—Shaul v. Fidelity & Deposit Co. of Maryland, 131 Misc. 401, 227 N.Y.S. 163
28 (Sup 1928), aff'd, 224 A.D. 773, 230 N.Y.S. 910 (3d Dep't 1928).
Or.—Glickman v. Solomon, 140 Or. 358, 12 P.2d 1017 (1932).
261
1 Collateral attack on finding
Where the court had jurisdiction in a foreclosure suit, its finding as to the land covered
2 by the mortgage could not be collaterally attacked.
Tex.— Sederholm v. City of Port Arthur, 3 S.W.2d 925 (Tex. Civ. App. Beaumont
3 1928), writ granted, (Oct. 17, 1928) and aff'd, 13 S.W.2d 687 (Tex. Comm'n App.
1929) and aff'd, 13 S.W.2d 685 (Tex. Comm'n App. 1929).
4 [FN5] Ark.—Brooks v. Baker, 208 Ark. 654, 187 S.W.2d 169 (1945).
Cal.—Wellborn v. Wellborn, 55 Cal. App. 2d 516, 131 P.2d 48 (1st Dist. 1942).
5 Tex.— Permian Oil Co. v. Smith, 129 Tex. 413, 73 S.W.2d 490, 111 A.L.R.1152
(1934).
6 [FN6] U.S.—Iselin v. La Coste, 147 F.2d 791 (C.C.A. 5th Cir. 1945).
Cal.—McAllister v. Superior Court in and for Alameda County, 28 Cal. App. 2d 160,
7 82 P.2d 462 (1st Dist. 1938).
Miss.—McIntosh v. Munson Road Machinery Co., 167 Miss. 546, 145 So. 731 (1933).
8 [FN7] Fla.—State ex rel. McGuire v. Mayo, 128 Fla. 699, 175 So. 732 (1937).
Neb.—State ex rel. Ritthaler v. Knox, 217 Neb. 766, 351 N.W.2d 77, 18 Ed. Law Rep.
9 434 (1984).
Tenn.—Whitson v. Johnson, 22 Tenn. App. 427, 123 S.W.2d 1104 (1937).
10 Utah—Intermill v. Nash, 94 Utah 271, 75 P.2d 157 (1938).
Order entered out of session
11 That an order taxing the plaintiff with the defendant's costs was signed and entered out
of session did not make the order void, so as to allow the plaintiff to collaterally attack
12 it, where the trial judge adequately made and announced a decision to tax the plaintiff
in the district during the session in which motion was made, and determined and announced
13 at a hearing the nature of the penalty to be assessed against the plaintiff.
N.C.—Daniels v. Montgomery Mut. Ins. Co., 320 N.C. 669, 360 S.E.2d 772 (1987).
14 [FN8] U.S.—Prichard v. Nelson, 137 F.2d 312 (C.C.A. 4th Cir. 1943).
Fla.—State ex rel. Warren v. City of Miami, 153 Fla. 644, 15 So. 2d 449 (1943).
15 Tex.—Bridgman v. Moore, 143 Tex. 250, 183 S.W.2d 705 (1944).
Vices for which judgment can be annulled
16 Vices as to the form of a judgment for which the judgment can be annulled are
“absolute nullities” and can be asserted at any time, in a collateral proceeding, and before
17 any court.
La.— Champagne and Rodgers Realty Co., Inc. v. Henning, 947 So. 2d 39 (La. Ct.
18 App. 5th Cir. 2006), writ denied, 949 So. 2d 440 (La. 2007).
[FN9] Tex.— Greiner v. Jameson, 865 S.W.2d 493 (Tex. App. Dallas 1993), writ
19 denied, (Mar. 23, 1994).
[FN10] Mo.—Weatherford v. Spiritual Christian Union Church, 163 S.W.2d 916 (Mo.
20 1942).
N.Y.—Coles v. Carroll, 273 N.Y. 86, 6 N.E.2d 107 (1937).
21 Ohio—Binns v. Isabel, 39 Ohio L. Abs. 225, 12 Ohio Supp. 113 (C.P. 1942), aff'd, 72
Ohio App. 222, 27 Ohio Op. 87, 39 Ohio L. Abs. 237, 51 N.E.2d 501 (2d Dist. Franklin
22 County 1943).
[FN11] Or.—Linn County v. Rozelle, 177 Or. 245, 162 P.2d 150 (1945).
23 [FN12] Cal.—Wallace v. Wallace, 111 Cal. App. 500, 295 P. 1061 (4th Dist. 1931).
Ga.—Hardin v. Dodd, 176 Ga. 119, 167 S.E. 277 (1932).
24 Or.—Linn County v. Rozelle, 177 Or. 245, 162 P.2d 150 (1945).
[FN13] Ill.— People ex rel. Anderson v. Village of Bradley, 367 Ill. 301, 11 N.E.2d
25 415 (1937).
Mich.—Morris v. Barker, 253 Mich. 334, 235 N.W. 174 (1931).
26 Or.—Linn County v. Rozelle, 177 Or. 245, 162 P.2d 150 (1945).
[FN14] U.S.—Huddleston v. Dwyer, 145 F.2d 311 (C.C.A. 10th Cir. 1944).
27 Cal.— Wells Fargo & Co. v. City and County of San Francisco, 25 Cal. 2d 37, 152
P.2d 625 (1944).
28 [FN15] U.S.—Huddleston v. Dwyer, 145 F.2d 311 (C.C.A. 10th Cir. 1944).
[FN16] Cal.—Wells Fargo & Co. v. City and County of San Francisco, 25 Cal. 2d 37,
262
1 152 P.2d 625 (1944).
Or.—Linn County v. Rozelle, 177 Or. 245, 162 P.2d 150 (1945).
2 [FN17] Utah—Mary Jane Stevens Co. v. Foley, 67 Utah 578, 248 P. 815 (1926).
[FN18] Kan.—Dickson v. Patterson, 106 Kan. 794, 189 P. 912 (1920).
3 [FN19] Or.—National Surety Corp. v. Smith, 168 Or. 265, 123 P.2d 203 (1942).
Westlaw. © 2011 Thomson Reuters. No Claim to Orig. U.S. Govt. Works.
4 CJS JUDGMENTS § 737

6 Judgments
9 VII. Rendition, Entry, Record, and Docketing
A. Rendition
§ 136. Generally
West's Key Number Digest, Judgment 191
The rendition of a judgment is the judicial act of the court in pronouncing the sentence of
13 the law on the facts in controversy as ascertained by the pleadings and verdict or findings, as
distinguished from the ministerial act of entering the judgment.
14 The rendition of a judgment is the judicial act of the court[1] in pronouncing the sentence
of the law on the facts in controversy as ascertained by the pleadings and verdict or findings,[
15 2] as distinguished from the official entry of the judgment.[3]
“Rendition” of judgment is the act by which the court declares the decision of the law
16 upon the matters at issue[4] and it is the substance and effect of an adjudication that is determinative
of whether it is a judgment, not the form of the decree.[5]
17 On its rendition, and without entry, a judgment is final, valid, and enforceable as between
the parties[6] in the absence of a statute to the contrary.[7]
18 Under some authority, the court's practice does not favor the termination of proceedings
without a determination of the merits of the controversy where that can be brought about with
19 due regard to necessary rules of procedure.[8]
Accordingly, the law does not favor the termination of proceedings without a determination
20 of the merits of the controversy when that can be brought about with due regard to necessary
rules of procedure, and for that reason, the trial court should make every effort to adjudicate
21 the substantive controversy before it and, when practicable, should decide a procedural
22 issue so as not to preclude hearing the merits of an appeal.[9]
[FN1] Ala.—Smith v. Jackson, 770 So. 2d 1068 (Ala. 2000).
23 Cal.—People v. Frontier Pacific Ins. Co., 83 Cal. App. 4th 1289, 100 Cal. Rptr. 2d 433
(3d Dist. 2000).
24 Md.—Davis v. Davis, 335 Md. 699, 646 A.2d 365 (1994).
Mo.—Cozart v. Mazda Distributors (Gulf), Inc., 861 S.W.2d 347 (Mo. Ct. App. S.D.
25 1993).
Neb.—National Account Systems of Omaha, Inc. v. McIntyre, 2 Neb. App. 884, 518
26 N.W.2d 158 (1994).
Okla.— Peoples Elec. Co-op. v. Broughton, 1942 OK 233, 191 Okla. 229, 127 P.2d
27 850 (1942).
[FN2] Md.—Davis v. Davis, 335 Md. 699, 646 A.2d 365 (1994).
28 Neb.—National Account Systems of Omaha, Inc. v. McIntyre, 2 Neb. App. 884, 518
N.W.2d 158 (1994).
263
1 Okla.— Presbyterian Hosp., Inc. v. Board of Tax-Roll Corrections of Oklahoma
County, 1984 OK 93, 693 P.2d 611 (Okla. 1984).
2 Tenn.—Christopher v. Spooner, 640 S.W.2d 833 (Tenn. Ct. App. 1982).
Tex.—Arriaga v. Cavazos, 880 S.W.2d 830 (Tex. App. San Antonio 1994).
3 W.Va.—Echard v. City of Parkersburg, 187 W. Va. 350, 419 S.E.2d 14 (1992).
Decision or findings by court, generally, see C.J.S., Trial §§ 602 to 606, 609 to 612.
4 Verdict or findings by jury, generally, see C.J.S., Trial § 485.
[FN3] Ariz.— American Sur. Co. of N.Y. v. Mosher, 48 Ariz. 552, 64 P.2d 1025
5 (1936).
Mo.—In re Marriage of Huey, 716 S.W.2d 479 (Mo. Ct. App. S.D. 1986).
6 Tenn.—Christopher v. Spooner, 640 S.W.2d 833 (Tenn. Ct. App. 1982).
Tex.—Bakali v. Bakali, 830 S.W.2d 251 (Tex. App. Dallas 1992).
7 W.Va.—Echard v. City of Parkersburg, 187 W. Va. 350, 419 S.E.2d 14 (1992).
As to entry, generally, see § 143.
8 [FN4] Tex.—Stallworth v. Stallworth, 201 S.W.3d 338 (Tex. App. Dallas 2006).
Va.—Jefferson v. Com., 269 Va. 136, 607 S.E.2d 107 (2005).
9 [FN5] Cal.— Otay River Constructors v. San Diego Expressway, 158 Cal. App. 4th
796, 70 Cal. Rptr. 3d 434 (4th Dist. 2008).
10 [FN6] Ala.—Du Pree v. Hart, 242 Ala. 690, 8 So. 2d 183 (1942).
Cal.—Bank One Texas v. Pollack, 24 Cal. App. 4th 973, 29 Cal. Rptr. 2d 510 (2d Dist.
11 1994).
Ill.—Wickiser v. Powers, 324 Ill. App. 130, 57 N.E.2d 522 (3d Dist. 1944).
12 Neb.—Pontiac Imp. Co. v. Leisy, 144 Neb. 705, 14 N.W.2d 384 (1944).
As to execution before entry see C.J.S., Executions § 13.
13 As to necessity of entry, see § 144.
[FN7] Ark.—McConnell v. Bourland, 175 Ark. 253, 299 S.W. 44 (1927).
14 Del.—Hazzard v. Alexander, 36 Del. 512, 178 A. 873 (Super. Ct. 1935).
Or.—Haberly v. Farmers' Mut. Fire Relief Ass'n, 135 Or. 32, 287 P. 222 (1930).
15 [FN8] Conn.—Rocco v. Garrison, 268 Conn. 541, 848 A.2d 352 (2004);
Pietraroia v. Northeast Utilities, 254 Conn. 60, 756 A.2d 845 (2000).
16 [FN9] Conn.— Fedus v. Planning and Zoning Com'n, 278 Conn. 751, 900 A.2d 1
(2006); Olympia Mortg. Corp. v. Klein, 61 Conn. App. 305, 763 A.2d 1055 (2001).
CJS JUDGMENTS § 136
18
19
The video Pam Roberts provided in her Discovery clearly shows Wal-Marts Frontino perhaps
20
21 making, but definitely handing a cd to RSIC Officers Braunworth and Crawford at the conclusion of
22 the arrest in question. However, I believe all three men testified that no other video existed relevant
23
to the accusation or arrest other than the interrogation room video, which was still filming the
24
exchange of the cd between Frontino and the RSIC Officers. Further, RSIC Officer Crawford can
25
clearly be seen in the interrogation room videos receiving a drivers license from Coughlin and calling
26
27 it in on his radio, despite Crawford, testifying, under oath, at trial, that Coughlin was arrested, in large
28 part, because he did not produce a physical driver's license and the information which would be
264
1 contained thereon and necessary to write a citation. Crawford testified that this lack of producing a
2 drivers license (and the dispatch records can clearly show the running of Coughlin's drivers license
3
number, which Coughlin hereby declares under penalty of perjury he has never committed to memory
4
in his entire life). Further, in direct contradiction to the sworn testimony of both Frontino and
5
6
Crawford, the UPC for the cough drops does appear on both the allegedly stolen items $14.00 receipt
7 and the $80.00 receipt of items purchased immedately prior to the arrest. Both Frontino and
8 Crawford swore that the UPC did not appear on both.

9
ANALYSIS
10
Winston Products v. DeBoer, 122 Nev. Adv.Op. 48, 134 P. 3rd 726 (2006);“In resolving this motion,
11
we revisit the method used to compute the time for filing motions for judgment as a matter of law and
12
13 for a new trial and the tolling period to file a notice of appeal when these motions are served by mail
14 or electronic means. The Nevada Rules of Civil Procedure (NRCP) require these so-called tolling
15
motions to be filed within 10 days from the date a judgment is filed and served. However, the 2004
16
amendments to the NRCP changed the computation of time where the prescribed period is less than
17
11 days to exclude Saturdays, Sundays and nonjudicial days. Where, as here, the time to file a
18
19 tolling motion is 10 days, we conclude that the “period of time prescribed” in NRCP 6(a) does not
20 include the 3-day allowance for service by mail under NRCP 6(e). Therefore, the filing period for a
21
tolling motion is computed first under NRCP 6(a), and then 3 additional days are added under NRCP
22
6(e) when service was made by mail or electronic means. Using this computation method, we
23
conclude that appellant's tolling motions were timely filed in the district court. Accordingly, we
24
25 deny respondent's motion to dismiss this appeal. Further, although this issue was not addressed by
26 the parties, we conclude that the tolling motions also tolled the time to appeal from the post-judgment
27
order awarding attorney fees and costs.
28
265
1 FACTS
2
The final judgment after a jury verdict in favor of respondent was filed on April 18, 2005.
3
Respondent served appellant with notice of entry of the district court's final judgment via facsimile
4
5 and mail on April 21, 2005. Fifteen days later, on May 6, 2005, appellant moved the district court
6 for judgment as a matter of law under NRCP 50(b) or for a new trial pursuant to NRCP 59.
7 Respondent opposed appellant's motions in the district court, arguing, in part, that they were not
8
timely filed.
9
10 Before resolving the motions, on June 9, 2005, the district court entered a post-judgment order
11 awarding attorney fees and costs in favor of respondent. Notice of entry of the order was served on
12
appellant on June 10, 2005. On June 27, 2005, the district court entered its order denying
13
appellant's motion for judgment as a matter of law or for a new trial. The district court determined
14
that appellant's motions had been timely filed but concluded that appellant was not entitled to any
15
16 relief. On July 29, 2005, within 30 days after service of notice of entry of the June 27 order
17 resolving the motions, appellant filed a notice of appeal from that order, the final judgment, and the
18 post-judgment order awarding attorney fees and costs.
19
Respondent has filed a motion to dismiss the appeal, alleging that appellant's motions for judgment as
20
21 a matter of law and for a new trial were not timely and therefore did not toll the time to appeal.
22 Appellant opposes the motion.

23
DISCUSSION
24
25 This court lacks jurisdiction to consider an appeal that is filed beyond the time allowed under
26
NRAP 4(a).1 A timely filed motion for judgment as a matter of law under NRCP 50(b) or for a new
27
trial under NRCP 59 tolls the time for filing an appeal until no later than 30 days after a party serves
28
266
1 written notice that the order resolving such motions has been entered.2 A tolling motion under
2
NRCP 50(b) or NRCP 59 is timely if it is filed within 10 days after a party serves written notice that a
3
judgment has been entered.3 Three additional days are added to this filing deadline when service
4
5 was made by mail or electronic means.4

6
In the motion to dismiss, respondent argues that our prior case law requires that the 3-day allowance
7
8 for mailing be added directly to the 10-day period to file tolling motions before computing the filing
9 deadline under NRCP 6(a). Employing this rationale subjects these tolling motions to a 13-day time
10 period. Under NRCP 6(a), intermediate Saturdays, Sundays and nonjudicial days would be included
11
in the computation of the 13-day period. Applying this approach to this case results in the thirteenth
12
day from service of notice of entry falling on May 4, 2005. In this scenario, because appellant's
13
14
motions were not filed until May 6, 2005, they would be untimely and would not effectively toll the
15 time to appeal.
16
Appellant encourages us to adopt the opposite approach to that suggested by respondent. Instead of
17
first adding the 3 days for service by mail to reach a 13-day time period, appellant contends that
18
19 sound judicial policy favors adding the 3-day allowance only after computing the 10-day filing period
20 and excluding intermediate nonjudicial days under NRCP 6(a). Appellant argues that this method of
21 computing the time period is consistent with federal court interpretation of the analogous federal rule,
22
FRCP 6, and furthers the intent of NRCP 6(e) by allowing for more time when service is made by
23
mail. Using this method in this case, appellant argues that its motions for judgment as a matter of
24
25
law and for a new trial were timely filed and effectively tolled the time to appeal.
26 Rule 6 of the Nevada Rules of Civil Procedure governs time:

27
28
267
1 (a) Computation. In computing any period of time prescribed or allowed by these rules, by the local
2 rules of any district court, by order of court, or by any applicable statute, the day of the act, event, or
3
default from which the designated period of time begins to run shall not be included. The last day
4
of the period so computed shall be included, unless it is a Saturday, a Sunday, or a nonjudicial day, in
5
6
which event the period runs until the end of the next day which is not a Saturday, a Sunday, or a
7 nonjudicial day, or, when the act to be done is the filing of a paper in court, a day on which weather
8 or other conditions have made the office of the clerk of the district court inaccessible, in which event
9
the period runs until the end of the next day which is not one of the aforementioned days. When the
10
period of time prescribed or allowed is less than 11 days, intermediate Saturdays, Sundays, and
11
nonjudicial days shall be excluded in the computation except for those proceedings filed under Titles
12
13 12 or 13 of the Nevada Revised Statutes.
14
․
15
16 (e) Additional Time After Service by Mail or Electronic means. Whenever a party has the right or
17 is required to do some act or take some proceedings within a prescribed period after the service of a
18 notice or other paper, other than process, upon the party and the notice or paper is served upon the
19
party by mail or by electronic means, 3 days shall be added to the prescribed period.
20
21 (Emphases added.) This court has previously considered in two cases the issue of computing time
22 periods under NRCP 6 when service was made by mail. In Ross v. Giacomo, this court concluded
23
that in calculating the time to file a tolling motion, the 3-day allowance for service by mail is added
24
directly to the 10-day period-resulting in a 13-day filing period.5 More recently, in Custom Cabinet
25
26 Factory of New York v. District Court, a 2003 case involving the 30-day time period to file a request
27 for trial de novo after arbitration, we affirmed the computation method employed in Ross and held
28 that the 3-day allowance for service by mail “should be added to the time allotted by statute or rule
268
1 first” and then the time period should be computed under NRCP 6(a).6 We reasoned that the
2
alternative method of computing time under Rule 6(a) of adding the 3 days for service by mail after
3
computing the filing deadline “would potentially result in an additional five to seven days to file
4
5 motions” which was “complicated and absurd.” 7 Instead, we believed at the time that using the
6 method of first adding the 3 days for service by mail to the time allotted by statute or rule and then
7
computing the time period, was a simpler and speedier computation scheme.8
8
9 However, in 2004, after our decisions in Ross and Custom Cabinet, we amended NRCP 6 to be
10
consistent with the 1985 amendments to the federal rule.9 That amendment made the exclusion of
11
intermediate Saturdays, Sundays, and nonjudicial days applicable in computing time periods of less
12
13 than 11 days.10 Before the 2004 amendment, NRCP 6(a) only excluded intermediate nonjudicial
14 days in computing periods of less than 7 days. Several federal courts have considered the intent
15
behind FRCP 6(e)'s 3-day mailing allowance in interpreting the 1985 amendment to the computation
16
17
provision of FRCP 6(a).11 In computing time periods in those cases, the federal decisions have
18 focused on the “period of time prescribed” and determined that it does not include the 3 additional
19 days for mailing under Rule 6(e). Those federal courts have therefore found that the less-than-11-
20
day provision of Rule 6(a) is applicable to 10-day periods even when service is made by mail.
21
22
In the first seminal case after the 1985 amendment to FRCP 6, a federal district court in Nalty v.
23 Nalty Tree Farm recognized that the amendment “was intended to extend the response time allowed
24
under various rules prescribing ten day limits.” 12 The Nalty court observed, however, that adding
25
additional time for mailing under Rule 6(e) to create a 13-day time period ultimately resulted in the
26
27
same amount of time that was allowed before the 1985 amendment because at that time, nonjudicial
28 days were not excluded from the computation of 10-day periods.13 The court determined that
269
1 “[s]uch a result cannot be consistent with the obvious intentions of the advisory committee” and
2 declared that “[t]he mailing rule should provide three extra days, in addition to whatever period the
3
party would otherwise have, to reflect the presumed lapse in notice because of service by mail.” 14
4
5
The Nalty court thus held that the 3-day allowance for mailing should be added only after computing
6 the time period under Rule 6(a).15

7
8 Likewise, in Lerro v. Quaker Oats Co.,16 the Seventh Circuit Court of Appeals addressed this same
9 issue in the context of an objection to a magistrate judge's report and concluded that “the period of
10 time” in Rule 6(a) was not the sum of all allowable periods. The court noted that Rule 6(e) is
11
“designed to give a litigant approximately the same effective time to respond whether papers are
12
13
served by hand or by mail.” 17 And the court reasoned that “[t]he only way to carry out Rule 6(e)'s
14 function of adding time to compensate for delays in mail delivery is to employ Rule 6(a) first.” 18
15
In Tushner v. United States District Court for Central District of California, the Ninth Circuit Court
16
17 of Appeals concluded that the 10-day period prescribed for filing a jury demand did not become a 13-
18
day period for purposes of Rule 6(a) as a result of the service-by-mail provision of Rule 6(e).19 The
19
court stated that Rule 6(e) should not be “construed to render prescribed periods of less than eleven
20
days ineligible for beneficial treatment under Rule 6(a)” and concluded that it “would be anomalous ․
21
22 to interpret the rules so that a litigant served by mail would have less time for action than a litigant
23
served personally.” 20 Instead, the court held that “[t]he period is calculated first by applying the
24
less-than-eleven-day provision of Rule 6(a), thereby excluding any intervening weekends and legal
25
holidays. After this computation, three additional days are added for mail service under Rule 6(e).”
26
27 21
28
270
1 As we noted in Custom Cabinet, federal decisions are not binding on this court.22 However, “[w]e
2
have previously recognized that federal decisions involving the Federal Rules of Civil Procedure
3
provide persuasive authority when this court examines its rules.” 23 On the particular issue of
4
5 computing time under NRCP 6, the federal decisions discussed above in regard to the federal rule are
6 logically compelling.
7
Our decisions in Custom Cabinet and Ross reflect the court's desire to maintain a simple, efficient
8
9 and uniform system for computing time periods under NRCP 6.24 However, neither of those cases
10 considered the impact that their computation scheme would have on filing periods subject to the
11
provision in NRCP 6(a) for the exclusion of intermediate nonjudicial days. In light of our recent
12
amendment to NRCP 6(a), which made the nonjudicial-day exclusion applicable to longer time
13
periods, we can no longer reconcile the utility of Ross and Custom Cabinet with the stifling effect
14
15 that they have on the intent behind Rule 6(e). Rule 6(e) is intended to provide litigants with
16 additional time when service is made by mail. The computation method we employed in Custom
17
Cabinet and Ross works contrary to that intent. Using the method employed in those cases after the
18
amendment to Rule 6(a), when a 10-day time period is involved, the party personally served would
19
always have more time to act than a party served by mail.
20
21 For example, NRCP 59(b) provides that “[a] motion for a new trial shall be filed no later than 10 days
22
after service of written notice of the entry of the judgment.” If a party is personally served with
23
notice of entry, that party has 14 calendar days to file a motion because under NRCP 6(a), the
24
intermediate nonjudicial days would be excluded from the computation. But under the Ross and
25
26 Custom Cabinet computation scheme, if that party had been served by mail, that party would only
27 have 13 calendar days to file the same motion because the intermediate nonjudicial days would be
28
included in the computation. And after taking into account the actual time for delivery of mail, a
271
1 party served by mail would certainly have even less than 13 calendar days to act. This result defeats
2 the purpose of Rule 6(e) and essentially makes the amendment to Rule 6(a) a nullity by converting
3
10-day time periods into 13-day periods that do not garner the benefit of the amendment. As the
4
Seventh Circuit observed in Lerro, “[i]nteractions within a complex set of rules sometimes can have
5
6
unexpected and unwelcome effects, but we should not create them when the text readily can bear
7 another meaning.” 25 We should not do so here in interpreting NRCP 6.

8
We therefore reverse our decisions in Custom Cabinet and Ross to the extent that they require that
9
10 filing periods be computed by adding the 3 days for service by mail under NRCP 6(e) to the
11 prescribed period before applying NRCP 6(a). Consistent with the compelling federal cases
12
discussed above, we hold that the 10-day time period for filing motions for judgment as a matter of
13
law and for a new trial should be calculated first under NRCP 6(a), excluding intermediate Saturdays,
14
Sundays and nonjudicial days. If service was made by mail or electronic means, 3 days should
15
16 thereafter be added pursuant to NRCP 6(e).
17
In this case, notice of the judgment's entry was served by mail on Thursday, April 21, 2005.
18
Computing the 10-day time period from this date and excluding intermediate nonjudicial days under
19
NRCP 6(a), extended the deadline for tolling motions to Thursday, May 5, 2005. Adding 3 days at
20
21 that point for service by mail made Monday, May 9, 2005, the final deadline to file motions for
22 judgment as a matter of law or for a new trial. Appellant's motions were filed before that date, and
23
therefore they were timely filed and effectively tolled the time to appeal. Thereafter, appellant
24
timely filed a notice of appeal within 30 days after service of written notice of entry of the order
25
26 resolving the tolling motions.26
27
28
272
1 Finally, although the motion to dismiss and opposition did not address whether appellant's tolling
2 motions tolled the time to appeal from the post-judgment order awarding attorney fees, because of the
3
ambiguous nature of this area of law and the potential pitfall that it may present to practitioners, we
4
5
elect to address it sua sponte.27 The precise issue is whether a tolling motion directed at the final
6 judgment also tolls the time to appeal from a special order after final judgment. This is an issue of
7 first impression in Nevada.

8
An order awarding attorney fees and costs is substantively appealable as a special order after final
9
10 judgment.28 Special orders after final judgment are appealable because they affect the rights of a
11
party growing out of the final judgment.29 Like an appeal from a final judgment, an appeal from an
12
order awarding attorney fees and costs must be filed no more than 30 days from the date that notice
13
14 of the order's entry is served.30

15
Here, notice of entry of the order awarding attorney fees and costs was served on appellant on June
16
10, 2005. However, appellant did not file its notice of appeal until July 29, 2005-well beyond the
17
18 30-day time limit allowed under NRAP 4(a)(1). Accordingly, this court only has jurisdiction to
19 consider issues relating to the attorney fees and costs order if the time to appeal from that order was
20
tolled by appellant's motions for judgment as a matter of law and for a new trial.
21
NRAP 4(a)(4) provides that when a tolling motion is filed, “the time to file a notice of appeal runs for
22
23 all parties from entry of an order disposing of the last such remaining motion.” This court's
24
decisions have evaluated tolling motions in the context of appeals from final judgments.31 However,
25
because NRAP 4(a)(4) does not specify from which orders the time to appeal may be tolled, its
26
applicability to post-judgment orders awarding attorney fees and costs is unclear.
27
28
273
1 In this case, the order awarding attorney fees to respondent was predicated on the final judgment in
2 respondent's favor. There is thus a close connection between the final judgment and the special
3
order after final judgment in that a change to the final judgment would likely result in a change to the
4
special order after final judgment. By definition, any special order after final judgment must be
5
6
closely related to the judgment. This close connection leads us to conclude that the tolling motions
7 enumerated in NRAP 4(a)(4) apply to both types of orders. Any other interpretation of NRAP 4(a)
8 (4) would result in the appeal of a post-judgment order proceeding in this court while the underlying
9
judgment was still subject to change during the pendency of tolling motions in the district court.
10
Such an effect would not only impede judicial economy and result in piecemeal litigation,32 but it
11
12 would also likely be counterintuitive to many legal practitioners and create significant confusion over
13 the time for filing appeals from special orders after final judgment. As we have previously
14
explained, “[t]he filing of a simple notice of appeal was intended to take the place of more
15
complicated procedures to obtain review, and the notice should not be used as a technical trap for the
16
17 unwary draftsman.” 33 Our interpretation of NRAP 4(a)(4) tolling motions should reflect our intent
18 to preserve a simple and efficient procedure for filing a notice of appeal.

19
We therefore hold that a timely filed tolling motion under NRAP 4(a)(4) tolls the time to appeal
20
from both final judgment and special orders entered after final judgment. Accordingly, this court
21
22 has jurisdiction to consider the merits of any issues raised in this appeal relating to the award of
23 attorney fees and costs in the district court's June 9, 2005, order.
24
CONCLUSION
25
26 We reverse our decisions in Custom Cabinet and Ross to the extent that they require that filing
27 periods be computed by adding 3 days for service by mail under NRCP 6(e) to the prescribed time
28
274
1 period before applying NRCP 6(a). Further, we hold that the “period of time prescribed” does not
2 include the 3-day allowance for service by mail under NRCP 6(e) and that time periods should be
3
calculated first under NRCP 6(a) before adding time under NRCP 6(e). Using this method of
4
computation, we conclude that appellant's motions for judgment as a matter of law and for new trial
5
6
were timely filed and thus effectively tolled the time to appeal. As a result, appellant's notice of
7 appeal was timely filed. Accordingly, we deny respondent's motion to dismiss.
8
We further hold that timely motions listed under NRAP 4(a)(4) toll both the time to appeal from the
9
final judgment and the time to appeal from a special order entered after final judgment.
10
11 Accordingly, this court also has jurisdiction to consider the merits of appellant's appeal from the
12 district court's order awarding attorney fees and costs in favor of respondent.
13
FOOTNOTES
14
15 1. See NRAP 3(a); Alvis v. State, Gaming Control Bd., 99 Nev. 184, 660 P.2d 980 (1983).
16
2. NRAP 4(a)(4).
17
18 3. NRCP 50(b); NRCP 59(b).
19
4. NRCP 6(e).
20
5. 97 Nev. 550, 553 nn. 1 & 2, 635 P.2d 298, 300 nn. 1 & 2 (1981).
21
22 6. 119 Nev. 51, 54-55, 62 P.3d 741, 743 (2003).

23
7. Id. at 54, 62 P.3d at 742-43.
24
25 8. Id.
26
9. See NRCP 6 drafter's note (2004).
27
28 10. Id.
275
1 11. See, e.g., Nalty v. Nalty Tree Farm, 654 F.Supp. 1315 (S.D.Ala.1987); Tushner v. U.S. Dist.
2 Court for Cent. Dist. of Cal., 829 F.2d 853 (9th Cir.1987); Lerro v. Quaker Oats Co., 84 F.3d 239
3
(7th Cir.1996).
4
5 12. 654 F.Supp. at 1317.
6
13. Id.
7
14. Id.
8
9 15. Id. at 1317-18.

10
16. 84 F.3d 239, 242.
11
12 17. Id.
13
18. Id.
14
15 19. 829 F.2d at 855-56.

16
20. Id. (citing Nalty, 654 F.Supp. at 1317).
17
18 21. Id. at 855-56.
19
22. 119 Nev. at 54, 62 P.3d at 742-43.
20
21 23. Nelson v. Heer, 121 Nev. 832, 122 P.3d 1252, 1253 (2005).
22
24. Custom Cabinet, 119 Nev. at 55, 62 P.3d at 743.
23
25. 84 F.3d at 242.
24
26. NRAP 4(a)(4).
25
27. See Albios v. Horizon Communities, Inc., 122 Nev. 409, 132 P.3d 1022 (2006); McNair v.
26 Rivera, 110 Nev. 463, 468 n. 6, 874 P.2d 1240, 1244 n. 6 (1994); Bradley v. Romeo, 102 Nev. 103,
105, 716 P.2d 227, 228 (1986); Western Indus., Inc. v. General Ins. Co., 91 Nev. 222, 229-30, 533
27 P.2d 473, 478 (1975).
28 28. Smith v. Crown Financial Services, 111 Nev. 277, 289 n. 2, 890 P.2d 769, 771 n. 2 (1995).
276
1 29. See Gumm v. Mainor, 118 Nev. 912, 59 P.3d 1220 (2002).
2 30. NRAP 4(a)(1).
31. See, e.g., Matter of Application of Duong, 118 Nev. 920, 922-23, 59 P.3d 1210, 1212 (2002)
3
(concluding that a timely filed motion to amend or make additional findings of fact tolled the time to
4 appeal from a final judgment denying a petition to seal criminal records); Chapman Industries v.
United Insurance, 110 Nev. 454, 457, 874 P.2d 739, 741 (1994) (concluding that timely filed tolling
5 motions tolled the time to appeal from the final judgment); Able Electric, Inc. v. Kaufman, 104 Nev.
29, 31-32, 752 P.2d 218, 220 (1988) (concluding that a motion to alter or amend tolled the time to
6
appeal from the final judgment).
7 32. See, e.g., Hallicrafters Co. v. Moore, 102 Nev. 526, 728 P.2d 441 (1986).
8 33. Forman v. Eagle Thrifty Drugs & Markets, 89 Nev. 533, 536, 516 P.2d 1234, 1235 (1973),
overruled on other grounds by Garvin v. Dist. Ct., 118 Nev. 749, 751, 59 P.3d 1180, 1181 (2002).”
9 Winston Products v. DeBoer, 122 Nev. Adv.Op. 48, 134 P. 3rd 726 (2006);
10 The above, admittedly extended citation, applies to this issues at hand. Wherefore, the
11
udnersigned seeks a copy of the Order from the 11 30 , 2011 Trial, including any Contempt Order,
12
which must set for the with specificity pursuant to Houston v. Eight Judicial Distirct Court when
13
Judge Pomeranze put Houston in cuffs for about 30 minutes, a case I am somewhat aware of:
14
15 Coughlin Mandamus:
16 http://caseinfo.nvsupremecourt.us/public/caseView.do?csIID=22746
17
18
Houston Mandamus:
19
http://caseinfo.nvsupremecourt.us/public/caseView.do?csIID=14052
20
21
22

24
Zach Coughlin
Defendant
25
26
27
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277
1 DECLARATION OF ZACH COUGHIN
2
3
1. I am the Defendant in this action.
4
5 2. I am not sure exactly what Judge Howard Ordered at the conclusion of the November 20th,
6
20ll Trial
7
3. I have not been entirely sure what the difference is between emails and faxes, as many people
8
9 send faxes from their computers, like email, and it is my understanding that all electronic
10 transmissions, whether text, sound, video, whatever, are ultimately just converted to series of
11
1's and 0's....Nonetheless, I have read the RMCR Rule 5 on service of motions by fascimile
12
and made reasonable attempts to comply with Ms. Roberts request that I interpret that rule to
13
mean a transmission of 1's and 0's that is not “email” based. As such, I fax her from a fax
14
15 number of mine, 949-667-7402 and have faxed her the December 13th Motion for a New Trial,
16 etc. to Ms. Roberts at her fax number. I know of know rule that allows Ms. Roberts, a public
17
employee, to all the sudden declare a citizen is not allowed to email her, much less opposing
18
counsel in a case.
19
20 4. Attorneys in private practice, as far as I know, manage to open attachments, use Spybot,
21 Malwarebytes, SuperAntiSpyware, whatever....they make it happen without a super bloated

22
governmental salary and don't claim a “fear of viruses” should dictate everything, in my
23
opinion.
24
25 5. At the conclusion of the November 30th, 2011 Trial, indeed, several hours prior to its
26 conclusion even, I was extremely faint and it was very difficult to function at the level
27
necessary to put on a defense. I do not wish to go into the why's and wherefores of this, it
28
278
1 may involved ADA/privacy issues/medical issues, but, suffice to say, I in no way could have
2 imagined that the RMC would see fit to hold everyone there, many getting paid quite a bit of
3
overtime, in some incredible effort to make sure this one little old petit larceny trial got done
4
super, super fast. I could have never imagined that the Trial would continue until almost 9 pm
5
6
at night, why, in my experience, government employees generally leave their office buildings
7 as soon after 5 pm as humanly possible. As such, I was in no way prepared,
8 physically/mentally/medically, etc. to continue on that late into the evening.

9
6. Apparently, at the close of Trial, Judge Howard made a ruling. I have received conflicting
10
11 reports as to whether the RMC is asserting that I entered a guilty plea (I do not believe that
12 assertion comports with reality in any way) or whether Judge Howard made a finding of
13 Contempt committed in the presence of the Court 22.030 and summarily sentenced me to
14
three days in jail, with no possibility of stay or appellate review, despite Judge Howard having
15
denied me my Sixth Amendment Right To Counsel, assuring me he would not order any
16
17
incarceration. I outlined to Judge Howard what a devastating effect his ruling might have on
18 my clients cases to the extent he was not affording me any opportunity to help them make
19 other arrangements to avoid prejudicing their cases, and Judge Howard agreed that he was sad
20
about that then angrily left the bench after exclaiming something like “we are off the record”.
21
22
7. At that point Judge Howard's team of Marshalls (I think about four of the Marshalls, at least
23 were working at overtime wages at that point in the night to insure that the Wal-Mart clerk
24 would not be burdened by having to return to court during normal business hours should a
25
continuance have been granted) stormed up to me and demanded I assume a handcuffed
26
position, despite my passionate pleas that I needed to be able to hit the “save” button on my
27
28
notes from the trial on my netbook computer. The Marshals told me that was not allowed to
279
1 hit the “save” button and that they didn't care about my notes being lost. Its really was quite
2 remarkable the extent to which these Marshals treated me like I just knocked off a liquor store
3
with a firearm, pistol whipped the cashier, then happened upon them in the parking lot after
4
they witnessed the entire event.
5
6 8. I was taken back to a holding cell for several minutes, whereupon I was summoned back into
7 the court room and Judge Howards presence where he talked some more. As I recall, Judge
8
Howard mentioned a 10 day limitations period or deadline that would be running from the
9
notice of entry of his Verdict and Contempt Finding. Judge Howard mentioned that, given
10
11 that he was incarcerating me for the next 3 days, he was going to extend all deadlines which
12 might apply to any notices of appeal or motions seeking a new trial, to set aside the judgment,
13 vacate, etc an additional three days after the normal time on which those limitations periods
14
would run. Judge Howard seemed to explain that this would have the effect of giving me
15
more time to undertake to file these pleadings, motions, and notices if I so choose so that the
16
17
summary incarceration (which Judge Howard was sure to point out would not be bailable or
18 otherwise circumvented by any attempts to access justice) would not prejudice my ability to
19 do so. As I understood it this meant lengthening the time I had to file such papers, not
20
shortening it, and Judge Howard seemed to indicate that the period to file such things would
21
still be adjudged to be within the 11 days or less cited in NRCP 6(a), and, as such, non
22
judicial days would not count towards the 10 days within which I must file the various post
23
24 Verdict papers I might want to file. Judge Howard seemed to indicate that the three additional
25 days he was granting me would be added on after the expiration of those 10 non judicial days
26
from notice of entry of Judge Howard's Order was filed with the RMC and served upon me.
27
28
280
1 9. It is my recollection that Judge Howard then left the courtroom and I was left alone with
2 about 4 Marshals, all collecting overtime. At that point the got a bit rough with me and
3
started speaking in very hostile, ominous tones, shoving some papers in front of my face, but
4
not long enough for me to be able to read them or discern what they related to. The Marshals
5
6
began demanding that I sign these papers. I asked them if they were mortgage documents or
7 perhaps some student loan agreements or other sorts of documents for which any reasonable
8 person would want an opportunity to review prior to signing. This made the Marshals even
9
more angry than they normally seem, and they typically seem very, very angry most of the
10
time, to me at least. In fact, Marshal Mentzel, at My October 11th, 2011 arraignment had
11
become enraged with me for askign questions about my Sixth Amendment Right to Counsel. I
12
13 reported this to the court and even made a notation about it, I believe, on the document
14 Marshal Mentzel demanded I sign on that day. That same day Marshal Mentzel criticized me
15
to my face after I appeared before Judge Gardner for the arraignment. Mentzel told me I had
16
asked Judge Gardner stupid questions, and I believe he made some other insulting and
17
threatening remarks to me at that time, but I am a bit afraid to get into here in much detail.
18
19 10. So, on November 30th, 2011, after Judge Howard left the courtroom the Marshals would not
20
let me read the papers they wanted me to sign for more than a second or two before they
21
began hounding me to sign them in angry and threatening tones. I was so distraught from the
22
various irregularities I perceived in the Trial, and that was only compounded by the thuggish
23
24 behavior of the Marshals, who quickly informed me that they didn't have time for me to read
25 anything and dragged me away to the 3 days of incarceration I faced, while my car was sure
26
to get towed (especially considering the Deputees at the Washoe County Jail saw fit to refuse
27
to allow me to make more than, I believe, a single phone call, shortly after arriving at the jail,
28
281
1 whereupon they went into their usual routine of retaliating against one who refuses to divulge
2 their religious preference or one who cannot answer all of their highly invasive questions with
3
the exact degree of specificity they demand. This retaliation, in my case, included forcing me
4
into some sort of position on my knees extremely close to the crotches of several WCSO
5
6
Deputees in some sort of sadistic forced simulation of my performing oral sex upon them, at
7 least from my point of view. I was placed in a freezing cold room, with a cement floor, by
8 myself, in retaliaton for failing to disclose my religious preference and indicating that I was
9
not exactly sure how much money I made each month given the variable nature of my
10
compensation. I was place alone in a holding cell with nothing but a wooden bench, and the
11
ice cold cement floor due to the cell being sequestered away from the buildings heat sources,
12
13 including other people. My dog was left to fend for itself. My dog was feature in this
14 December's Nevada Lawyer magazine, Jackson Pawluck, a 3 year old Pekingnese.

15
11. 3 Days later when I was release from jail, the personal property returned to me did not
16
17
included any Verdict or Contempt Finding/Order related to the November 30th, 2011 Trial in
18 RMC 11 CR 22176. I called several times in the days following my release and spoke with
19 Veronica Lopez (though it took several days to ascertain her last name given that neither she
20
nor anyone associated with the RMC would divulge it to me) whom informed me that I had
21
been served Judge Howard's Order at the conclusion of the November 30th, 2011 Trial. Ms.
22
Lopez immediately took a bullying, hostile, aggressive tone with me that seem completely out
23
24 of place coming from her given the position of authority the public has entrusted her with and
25 what I feel is a duty on her part to attempt to come across as “judicial” rather than tyrannical.
26
12. I informed Ms. Lopez that I did not feel I had been served at all, and that I was not at all sure
27
28
what she was referring to, but that I would definitely like to get a copy of any Order
282
1 immediately, as well as a copy of the audio of the Trial. I believe Ms. Lopez informed me
2 that I would not be allowed a copy of the audio, but that I would need to pay for a transcript to
3
be made. I am sure, however, that a female RMC filing office counter employee told me on
4
or about the same day that I would not ever be provided a copy of the audio recording of the
5
6
trial but that I would need to pay to have a transcript made, and that I could only use Pam
7 Longoni, the RMC's Official Transcriptist.
8
13. I called Ms. Longoni and when I finally got ahold of her she informed me that she would need
9
the RMC to allow her access to the audio (despite her being “linked” to the RMC's systems),
10
11 and that until that was done, she could not quote me an estimate for the transcript cost, nor
12 could she accept any payment form me. I believe Ms. Longoni further indicated to me that I
13 would not be able to get a copy of the actual audio recording either
14
14. I have sent several written communications and had several verbal communications with D.
15
16 Ballard and other RMC personnel expressing my exigent desire to get a copy of the audio of
17 the Trial, and how necessary it was to preparing filings/motions/pleadings for which I had a
18 very limited period of time to craft.
19
15. Before, while, and after speaking with Ms. Ballard, a gentleman whose name escapes me but
20
21 who is a filing counter clerk at the RMC told me I would need to get a subpoena to get a copy
22 of the RMC docket in my case, and that he couldn't give me copies of anything in my case,
23
certainly not the Order stemming from the November 30th, 2011 Trial, that he did not have
24
access to such, and even if he did, would not provide it, and that his system did not show
25
entry of anything in connection with the November 30th, 2011 Trial. He further verified that
26
27 there had not been any entry in his “docket” for RMC 11 CR22176 2I and that no Notice of
28 Entry of Order or Entry of Order existed in his sytem or computer for that matter following
283
1 the Trial. He did indicate that “they” said the Motion for New Trial that I had recently filed
2 was timely, and I believe he said “they” said the day he and I were currently speaking was
3
“the last day they gave you to file”, which I believe Tuesday, December 13th, and given the
4
“additional 3 days” language that I recall Judge Howard mentioning he was adding on to
5
6
allow me more time to file, would mean that “they” (I took “they” to be “Veronica”, whom
7 the gentleman clerk steadfastly refused to identify by last name and for which the phone
8 number he wrote down for me in his own handwriting with “Veronica” written out turned out
9
to be a disconnected number) had assumed service was appropriately performed at the
10
conclusion of the Trial, and that 13 days began running on the following day, that the half a
11
day the RMC is open on Fridays would count as a full judicial day, and that non judicial days
12
13 would be included in counting towards this 13 days given the way “they” or “Veronica” had
14 interpreted Judge Howard's Order, apparently in a way that made the time I had to file these
15
various papers shorter than it would have been had Judge Howard simply not granted an
16
additional three days given the dictates of not counting non judicial days in NRCP 6(e). It is
17
my understanding, however, the I have not even been served this Verdict/Order, and that any
18
19 limitations period must not even begin running until I am appropriately served. Veronica
20 admitted to me on the phone, I believe on Monday or Tuesday when I called her from the
21
free phone in the Washoe County Law library with law libarian employee Linda Blakeley
22
sitting within earshot, that the RMC felt it had appropriately served me the Order at the
23
conlcusion of the trial and had failed to otherwise send me a copy in the mail or by fax. I
24
25 asked Ms. Lopez if I could get a copy of the Order, as well as any other Orders that had been
26 issued in the case. She agree to fax me only the Order from the conclusion of the November
27
30th, 2011 Trial, refusing to provide any other Orders. As of yet, despite reading back to her
28
284
1 my fax number at least twice, I have yet to receive a fax containing anything from the RMC,
2 much less the Order following the November 30, 2011 Trial. Also, the Contempt Order is not
3
sufficiently specific, and Judge Howards lack the jurisdiction to prevent a citizen from
4
contacting any RMC employee be email for “any” reason. It is that sort of evident
5
6
impartiality and “not very judicial” behavior that augurs toward setting aside this Verdict, in
7 addition to Judge Howard's established pattern of denying motions before the time for the
8 City Atty to even respond has barely even begun. The City atty was faxed the 12 13 11
9
motion. Further Tom, of the RMC filing desk told Coughlin to email his specific question to
10
Judge Howard and the RMC administrative assistant.
11
12 APPLICATION FOR DEFERRAL OR WAIVER OF COURT FEES AND COST

13
This is an Application for Deferral of Court Fees and Costs.
14 STATEMENTS MADE TO THE COURT UNDER OATH. I swear or affirm that the information in this application is
true and correct. I make this statement under the penalty of prosecution for perjury if it is determined that I did not tell the
15 truth.
16 I am requesting a deferral or waiver of the following fees and costs in my case:

___x___Any or all of the following: All filing fees; fees for the issuance of either a summons and subpoena;
17
___x___Fees for obtaining one certified copy of a temporary order in a domestic relations case or a final order, judgment
18 or decree in all criminal proceedings.
___x___Fees for service of process by a sheriff, marshal, constable or law enforcement. Fees for service by publication.
19
___X___Filing fees and photocopy fees for the preparation of the record on appeal.
20 ___X___Court reporter’s fees of reporters or transcribers employed by the court for the preparation of the transcript.
21 The basis for the request is:
1. WAIVER: I am permanently unable to pay. My income and liquid assets are insufficient or barely sufficient to meet
22 the daily essentials of life and unlikely to change in the foreseeable future.
23 2. DEFERRAL:
a. My income is insufficient or is barely sufficient to meet the daily essentials of life, and includes no allotment that could
24 be budgeted for the fees and costs that are required to gain access to the court.
25 b. I do not have the money to pay the court fees and costs now. I do not know if I can pay the fees and costs at a later
date.
26
27 AFFIRMATION Pursuant to NRS 239B.030

28
285
1 the social security number of any person.
2 Pursuant to NRS 53.045, I declare under penalty of perjury that the foregoing is true and correct. Executed on December
16, 2011
3
4

Zach Coughlin
7 Defendant
8
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
286
1 PROOF OF SERVICE
2 I, Zach Coughlin, declare:
3
4 On December 19, 2011, I, Mr. Zach Coughlin served the foregoing document by and faxing a
true copy thereof to:
5
6
Pamela G Roberts, Esq.
Reno City Attorney's Office - Criminal Divison
7 AP.O. Box 1900 Reno , NV 89505
Phone Number: 775-334-2050
8 Fax number: 775-334-2420
9
Email: robertsp@reno.gov
10 and emailing to the RMC and faxing to the RMC (D. Ballard approved email filing).
11 renomunirecords@reno.gov
Clerk/Administrator
12
13 One South Sierra Street
Reno, Nevada 89501
14 Fax: 775 326 5105
15
16
17
18
19 + -----------------------------
Zach Coughlin
20 Defendant
21
22
23
24
25
26
27
28
287
1 index to exhbits:
1. collection of papers relevant to setting aside, including, inventory of property returned to
2 Coughlin upon release from 3 days jailing on 12/2/11, uninitiliaed, yet filed stamped 11 30 11
3
Order, no signature of Coughlin on Order, inconclusive whether “refused” on signature means
refused to sign, refused to hold, etc. Marshals kept order or otherwise did not allow Coughlin
4 to do anything, like save computer notes form trial, much less put a paper in his bag....RMC
“rec'd date stamped discovery that RMC told Coughlin it did not have despite numerous
5 written requests from Coughlin for it. 8 (eight) pages
6
2. Sample of Coughlin's recent work as an attorney, for which he has been paid a grand total of
$250 so far Carpentier v. Aames CV08-1709,
7 3. Another sample of Coughlin's work, for which he was paid $250: Cadle V Keller AP in BK
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
288
EXHIBIT 1
289
290
291
292
293
294
295
296
297

298
$
Zach Coughlin, Esq.
Reno, NV 89501
Tele: 775-229-6737
Fax: 949-667-7402
ZachCoughlin@hotmail.com
Attorney for Joni and James Carpentier
IN THE SECOND JUDICIAL DISTRICT COURT OF THE

STATE OF NEVADA IN AND FOR
THE COUNTY OF WASHOE
JAMES CARPENTIER, ET AL,

Plaintiff
Case No: CV08-01709
Dept No: 7
v.
EMERGENCY MOTION FOR
AAMES FUNDING CORP ETAL, TRO/INJUNCTION; MOTION TO SET
Defendant ASIDE; MOTION FOR SANTIONS
EMERGENCY MOTION FOR TRO/INJUNCTION; MOTION TO SET ASIDE

Nevada is one of the Western States of the US that are Non-Judicial States. In these
states, foreclosures are governed by State Civil Code. These homeowners have it the
toughest being in a non-judicial state, Lenders need not prove anything. They can simply
notify the homeowner of the default, then after a certain number of days, as defined
under State Civil Code, the property then proceeds to a Trustee sale at a public auction.
The only option available to you if you are a Non-Judicial State resident is for you to
file a civil action against your lender to compel them to provide proof of claim, and
therefore standing. The other option is to declare bankruptcy. In bankruptcy, generally
EMERGENCY MOTION FOR TRO/INJUNCTION; MOTION TO SET ASIDE 1
299
speaking, you have two options, Chapter 7 (no asset) or a Chapter 13 (asset). What some
homeowners do is to declare Chapter 7 and list their property as an unsecured asset and
wait for the lender to object. This then puts the burden of proof on the lender. If your
loan was closed with lender A and is being foreclosed on by Lender B or C ... there must
be (by law) a valid chain of assignment to show that Lender C is the real and beneficial
party of interest. Because of the problem of securitization, this is never done. This
creates a real problem for the Lender (who is frankly doing this fraudulently anyway,
allegedly). For those with a lot of assets (such as equity in their homes), they can do a
Chapter 13. Under a Chapter 13 bankruptcy, you can file an Adversary Proceeding
where you sue your lender to compel them to produce valid proof of claim. The beauty
with Bankruptcy Court is that you have the law on your side. Rule 3001 (d) of the
Federal Code of Bankruptcy requires that your lender provide evidence of "perfected
title." If you choose to file a civil action against your lender, you better have proof. The
best proof you can bring is a securitization audit to prove that your loan has been
securitized. Then, work with your lawyer to build an argument around the points
outlined in this book. Unfortunately, this will set you back at the minimum $5000, and
more likely closer to $10,000 to $25,000. Another option you could do is to do a "quick
reconveyance method" as discussed in Chapter 4. This can be very effective in stopping
your servicer's ability to foreclose because it closes out the Deed of Trust/Mortgage.
This method is only applicable when you have clear evidence of movement or
securitization. You can find out more about this method on our website under the
Products tab. Alternatively, if you cannot afford a lawyer, you could try to do this
yourself. Great places to start are LivingLies.com and stopforeclosurefraud.com. These
are blogs with lots of articles, sample pleadings and lots of other resources I used during
my research. Another option is to join our foreclosure defense membership program.
We realized that there are SO MANY homeowners needing help. That is why we
developed a coaching membership program with specific information and resources to
help homeowners with their foreclosure defense. Our membership program has sample
pleadings, sample responses, forms and procedures others have used in their foreclosure
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defense. You will also be able to network with other homeowners local to you ... meet
with them to have coffee, and support each other. For more information about this
program, come to our website at: http://www.consumerdefenseprograms.com A good
place to start, if you are in a Non-Judicial State, is to start writing to your lender to
demand that they produce valid proof of claim. You can find a couple of sample letters
on our site. This will be a good place to get started.
COME NOW, Plaintiffs JAMES S. CARPENTIER and JOAN E.
CARPENTIER, by and through their attorney, Zach Coughlin, Esq, as and for their
claims for relief and hereby alleges and avers as follows. On July 15, 2011 a Notice
of Entry of Order was entered in the court's docket showing an Order granting
RESIDENTIAL CREDIT SOLUTIONS INC, AND QUALITY LOAN SERVICE
CORPORATION'S MOTION FOR SUMMARY JUDGMENT. Counsel Coughlin
admits at the outset that this motion is somewhat thrown together in a rush.
However, Coughlin only just became counsel of record in this case with a very
limited number of hours to file this motion. To that extent, Coughlin has herein cited
to Federal authority for basic things, such as the standard for a Motion for
Reconsideration (and barely, if any tolling authority to get past the 20 day
requirement of WDCR 13(7) and Rule 12 is included herein, however, Coughlin
commits to curing such deficiencies in short order and to make great efforts not to
prejudice opposing counsel with unsupported argument or allegations whilst still
zealously protecting his clients rights. This is easier said than done given the the
inordinately vexatious conduct the undersigned has been subjected to lately incident
to a wrongful eviction stemming from a Commercial Lease where non-payment of
rent was not alleged, yet a Summary Eviction Proceeding took place anyway, and to
top it off, a rent escrow deposit was forced upon the undersigned to the tune of
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$2,276 in the middle of the Summary Eviction Proceeding, in direct violation of NRS
40.253(6), and JCRCP 83. I in preparing this filing and in relation to the date of the
Trustee's sale, set for December 21, 2011 (opposing counsel Schuler-Hintz did send
an email to the undersigned late in the night of December 18, 2011, asserting that the
Trustee Sale has been postponed again to early February, 2012, and, not to impugn
Ms. Schuler-Hintz credibility, but there does seem to be authority to suggest to
Trustee Sales and the attendant scheduling changes, especially those not reduced to a
written stipulation, are a very hard thing to pin down). This is the second time the
undersigned has sent opposing counsel some eleventh hour correspondence, only to
me told, basically, “oh, the sale was moved a couple days ago” despite the fact that
neither the undersigned or either of his clients (the timing of whose divorce
dovetailed quite nicely with this foreclosure matter) was EVER informed of either of
these postponements of the scheduled Trustee's Sales and where the undersigned has
no reason to believe that these sales are being postponed for any reason other than the
undersigned's squawking, and where opposing counsel has continually failed to
provide any proof that these postponements occurred prior to said squawking (the
undersigned does recognize that it is possible that such postponements are a matter of
the public record and that such a hunch by the undersigned might be just plain
wrong).
The undersigned hereby requires the trustee to verify a comprehensive list of
issues related to the legal nature of the foreclosure proceedings enacted by the lender,
which as a byproduct, Carpentier as homeowner still retains full ownership of the
property and lives there. The Trustee assumes the liability in auctioning the property,
and should not foreclose on the property if there is a potential violation pointed out
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to them prior to the Auction Sale Date as they could face sanctions and ultimately
lose their license. To that end, the undersigned seeks a definite extension of time to
verify these matters (and the overcome the deleterious effect wrought on the
undersigned life and law practice by the wrongful eviction and alleged application of
an unlawful rent distraint and other bad faith conduct by the defendant and his
counsel in Reno Justice Court case Rev2011-001708. While Trustees are incredibly
busy and generating huge profits and often continually postpone the sale date to
provide themselves adequate time to research and respond to the issues raised by the
undersigned to protect themselves, such has not been reduced to a written stipulation,
as such this filing is necessary.
FACTS
1. At all times mentioned herein, Plaintiffs James S. Carpentier and Joan E.

Carpentier, hereinafter collectively referred to as “CARPENTIER,” are husband and
wife residing in the County of Washoe, State of Nevada.
2. Defendants, DOES I through XX are fictitious names; that Plaintiffs are

ignorant of the true names of the individuals, corporations, co-partnerships, and
associations so designated by said fictitious names, and when the true names are
discovered, Plaintiffs will seek leave to amend this Complaint and proceedings
herein to substitute the true name of said Defendants. Plaintiffs believe that each of
the Defendants designated herein as DOE is negligent or responsible in some manner
for the events herein referred to and negligently, carelessly, recklessly and in a
manner that was grossly negligent and willful and wanton, caused damages
proximately thereby to the Plaintiffs as herein alleged.
3. At all times mentioned herein, CARPENTIER is the owner of certain real

property commonly known as 2873 Sunny Slope Drive, Sparks Nevada 89434,
Washoe County Assessors Parcel Number 030-091-12, hereinafter referred to as the
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“PROPERTY,” and more particularly described as follow:
LOT 6 OF LEWIS HOMES-SPARKS NO. 5-A, ACCORDING TO THE MAP

THEREOF, FILED IN THE OFFICE OF THE COUNTY RECORDER OF
WASHOE COUNTY, STATE OF NEVADA ON JULY19, 1976, AS FILE NO.
417319 AND AS TRACT MAP NO. 1587.
4. On or about May 4, 2005, CARPENTIER had an existing mortgage

against the PROPERTY in the approximate principal amount of $150,000.00
5. On or about May 4, 2005, CARPENTIER was in default and in financial

trouble with regard to the existing first Deed of Trust in that James S. Carpentier
became injured, was unable to work, was receiving only workman’s compensation
payments, and Joan E. Carpentier at that time was unemployed.
6. On or about May 4, 2005, CARPENTIER was unable to meet their

current obligations under the first Note and Deed of Trust.
7. CARPENTIER received a mail solicitation to refinance their property

from Defendant Aames Funding Corporation dba Aames Home Loan, hereinafter
referred to as “AAMES.”
8. CARPENTIER contacted Defendant AAMES, AAMES did represent to

them that AAMES could cure their financial troubles by refinancing the existing first
obligation on the PROPERY, that they would qualify for such a loan, and that they
would generate sufficient funds to meet their obligations even though Joan E.
Carpentier was unemployed and James S. Carpentier received only disability income.
9. In furtherance of the refinance, Defendant AAMES was required to make

a loan application. Said loan application was filled out by the representatives by
Defendant AAMES and intentionally misstated the income of CARPENTIER to be
in excess of $6,000.00 per month.
10. The true fact was CARPENTIER received only $2400.00 per month, and
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the true fact was known to Defendant AAMES.
11. Defendant AAMES made a loan to CARPENTIER in the amount of

$170,800.00.
12. The loan made by Defendant AAMES was an adjustable rate which
would require payments in excess of $1400.00 per month.
13. At the time of making the loan and filling out the loan application by
Defendant AAMES, Defendant AAMES made the loan without determining or using
any commercially reasonable means or mechanism to determine CARPENTIER’s
ability to repay the loan and in fact knew or should have known that CARPENTIER
did not have the ability to repay the loan.
14. The $170,800.00 loan closed on or about May 4, 2005, and, on or about
that date, CARPENTIER did make, execute and deliver a Deed of Trust securing
repayment of the new loan. Said Deed of Trust having been given to Defendant
Windsor Management Co., a California corporation, as Trustee by James S.
Carpentier and Joan E. Carpentier, husband and wife as joint tenants, as Trustors in
favor of Defendant Aames Funding Corporation dba Aames Home Loan, as
Beneficiary. Said Deed of Trust was recorded May 4, 2005 as Document No.
3208651, Official Records of Washoe County.
15. Since the recordation of said Deed of Trust, CARPENTIER has been
unable to make all payments called for under the terms and conditions of the Deed of
Trust and Promissory Note which it secures and have made known their inability to
pay to Defendant AAMES.
16. Defendant AAMES has assigned the right to collect under the terms and
conditions of the Promissory Note and the Deed of Trust to Defendant Residential
Credit Solutions, Inc., hereinafter referred to as “RESIDENTIAL,” as of May 31,
2007.
17. CARPENTIER has contacted Defendants AAMES and RESIDENTIAL
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in an attempt to again refinance but informed Defendants AAMES and
RESIDENTIAL of their inability to qualify, and Defendants AAMES and/or
RESIDENTIAL offered to provide them with false and fraudulent W2 Forms in order
to meet financial requirements. CARPENTIER declined to participate in this loan
fraud.
18. As a direct result of CARPENTIER’s inability to make payments called

for under the refinanced loan, Quality Loan Service Corp on behalf of Defendant
RESIDENTIAL and on further behalf of Defendant AAMES did record a Notice of
Breach and Default and of Election to Cause Sale of Real Property Under Deed of
Trust on March 12, 2008 as Document No. 3629741, Official Records of Washoe
County.
19. Subsequent to the recordation of the Notice of Breach and Default,

Defendant AAMES has recorded a Notice of Trustee’s Sale scheduling sale on the
PROPERTY for July 9, 2008 at the hour of 11:00am at the County Court House
located at Virginia Street and Court Street in the City of Reno. The Notice of
Trustee’s Sale was recorded June 19, 2008 as Document No. 3661497, Official
Records of Washoe County.
20. The actions of Defendant AAMES in failing to make a determination of

CARPENTIER’s ability to repay the loan and inducing them to enter into said loan
constitutes an unfair lending practice pursuant to the provisions of NRS 598D.100.
21. CARPENTIER has been damaged as a direct and proximate result of

unfair lending practices of Defendants AAMES and RESIDENTIAL, and
CARPENTIER is entitled to damages and treble damages pursuant to the provisions
of NRS 598D.110.
22. CARPENTIER is entitled to their attorney fees pursuant to the provisions

of NRS 598D.110(2)(b).
23. CARPENTIER is further entitled to an offset against all sums owed under
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the Promissory Note secured by the Deed of Trust as herein alleged pursuant to the
provisions of NRS 598D.110(3).
24. CARPENTIER is further entitled to have this court cure any existing
default of the home loan and cancel the pending foreclosure and Trustee’s Sale
pursuant to the provisions of NRS 598D.110(3).
25. 1Plaintiffs incorporate herein by this reference all papers and pleadings on
file in this action.
26. As a direct and proximate result of the actions of Defendants AAMES

and RESIDENTIAL, CARPENTIER is in danger of loosing their interest in unique
real property by virtue of the foreclosure sale.
27. CARPENTIER is entitled to a temporary restraining order, preliminary

injunction and permanent injunction precluding Defendants from conducting a
foreclosure sale of the PROPERTY.
28. CARPENTIER lacks adequate remedy of law due to the unique character
of their interest in real estate.
29. CARPENTIER received a Notice of Sale indicating that their lender would
sel1 their home at auction on October 21, 2011, following their default in their
mortgage payments. The home remains occupied by the title owner. The Notice of
Sale did not give Joni or James Carpentier the requisite notice of the date of the
foreclosure sale. Pursuant to NRS 107.080, the foreclosure trustee must record a
Notice of Sale and give notice of the time and place of the sale by (1) personally
serving or mailing the notice by registered or certified mail to homeowner and others
"entitled to notice"; (2) posting the notice in a public place where the property is
located for 20 successive days; (3) publishing a copy of the notice 3 times (once a
week for three weeks); AND (4) posting the notice on the property 15 days before the
sale date. The Notice of Sale was recorded on October 3 with a sale date of October
21. This is only an 18 day notice period. This fails to comply with at least section (2)
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above, and perhaps section (4) should they fail to post the notice on the property on
or before October 6, depending upon whether section (4) requires that action to occur
within 90 days or to occur only after the passing of 90 days.
30. The substitution of Quality Loan Servicing as the foreclosure trustee was not
recorded. Under the Deed of Trust Recorded on April 18, 2005, Windsor
Management Co. was named as the Trustee. No document could be found with the
Recorder's Office indicating any entity substituted Quality Loan Servicing as the
foreclosure trustee under the Deed of Trust.
31. Defendant's have substantially departed from the notice, manner of service,
and process requirements of various law, including, but not limited to NRS 107.080.
When inquiry was made with Defendant's as to the basis, reasoning, and justifications
for the departures, Plaintiff's were told that “its your word against ours” and
otherwise responded to in a hostile, aggressive, and deceptive manner. More
discovery is in order in this regard.
32. However, as Mr. Zimbelman provided, the April 2009 Bankruptcy filing in Delaware
by Zimbelman's client listed, in the Creditor Matrix, a “Creditor Notice Name” of Walsh,
Baker, & Rosevear, the Carpentiers then former attorney, as James Walsh's Motion to
Withdraw as Counsel had been granted by this court On January 22, 2009, with Walsh
filing a Notice of Entry of that Order on January 26, 2009, in plenty of time for
Zimbelman's client to update the “Creditor Notice Name” and address to reflect the fact that
Walsh was not attorney of record fro the Carpentiers anymore, and that those notices should
have been sent directly to the Carpentiers.
33. Indeed, Mr. Zimbelman's CERTIFICATE OF SERVICE Pursuant to NRCP 5(b), for
his May 19, 2009 filing of NOTICE OF BANKRUPTCY FILING AND AUTOMATIC
STAY reads: “I certify that I am an employee of PEEL BRIMLEY LLP and that on this
19th day of May, 2009 I caused the above and foregoing document entitled NOTICE OF
BANKRUPTCY FILING AND AUTOMATIC STAY to be served as follows: x by placing
same to be deposited for mailing in the United States Mail, in a sealed envelope upon which
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first class postage was prepaid in Las Vegas, Nevada; and/or x to be sent via facsimile; to
the party(ies) and/or attorney(s) listed below at the address and/or facsimile number
indicated below:
James M. Walsh, Esq.
Walsh, Baker & Rosevear, P.C .
9468 Double R Blvd. Suite A
Reno, Nevada 89521
Attorneys for James S. Carpentier and Joan E. Carpentier
34. Further, Ms. Schuler-Hintz failed to respond appropriately to the Order Granting
Walsh's Withdrawal as Attorney of Record, and the subsequent Notice of Entry of that
Order on January 26, 2009. Hintz' Motion to Dismiss or in the Alternative For Summary
Judgment listed Walsh for the Proof of Service as well: “ I hereby certify that on the 4th day
of June a true and correct copy of DEFENDANT's RESIDENTIAL CREDIT SOLUTIONS,
INC., AND QUALITY LOAN SERVICE CORPORATION'S MOTION TO DISMISS OR
IN THE ALTERNATIVE FOR SUMMARY JUDGMENT was forwarded by US Mail with
postage prepaid to the addresses listed below:
James M. Walsh
Walsh, Baker & Rosevear
9468 Double R Blvd. Suite A
Reno, Nevada 89521 Attorney for Plaintiff
Further, the caption on Ms. Hintz Motion indicates the case is in Department 4, despite
the fact that pm February 11, 2009, a Case Assignment Notification Entry was entered in
the docket for this case CV08-01709, indicating this CASE REASSIGNED TO
DEPARTMENT 7 FROM DEPARTMENT 4 PER ADMINISTRATIVE ORDER.
35. Then, for some reason that is not quite clear, despite his co counsel Schuler-Hintz
having filed a Motion for Summary Judgment on June 4th, 2009 in the Second Judicial
District Court for Washoe County in this action, CV08-01709, Christoper Hunter, Esq.
Filed a somewhat similar Motion for Summary Judgment in CV09-01709, (bold emphasis
added) in a Motion which bears a front page heading, above the caption, that reads:
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“DISTRICT COURT
CLARK COUNTY, NEVADA”
Further, the caption on Mr. Hunter's June 23rd, 2010, Motion For Summary Judgment
indicates the case is in Department 4, despite the fact that February 11, 2009, a Case
Assignment Notification Entry was entered in the docket for this case CV08-01709 (much
less the fugitive or fictitious case CV09-01709 that Mr. Hunter listed in the Caption, in a
Clark County District Court case filed in Washoe County), indicating this CASE
REASSIGNED TO DEPARTMENT 7 FROM DEPARTMENT 4 PER
ADMINISTRATIVE ORDER. So, the Carpentiers were burdened with both attorneys
sending important pleadings to one who was no longer Attorney of Record for the
Carpentiers, despite a Notice of Entry of that Order Granting Withdrawal of James Walsh,
Esq., in addition to Mr. Hunter putting the wrong court and the wrong case number on a
Motion for Summary Judgment that would have nonetheless
36. Again, in his August 5, 2009 Certificate of Service for his Motion for Summary
Judgment, Mr. Hunter puts in the caption the wrong case number and the wrong Department
number, listing CV09-01709 and Department 4 where CV08-01709 and Department 7
should be. Further, the June 9, 2009 Notice of Lodgement was sent to only Zimbelman.
Further in her Certificate of Service for that Notice of Lodgement, filed separately on
August 5, 2009, Ms. Hintz puts in the caption the wrong case number and the wrong
Department number, listing CV09-01709 and Department 4 where CV08-01709 and
Department 7 should be. Interestingly, Exhibit 6 to Hunter's June 23, 2010 Motion for
Summary Judgment, while containing the text of the Delaware Court's Order removing the
stay, doesn't contain the Delaware Bankruptcy Court's Proof of Service for that Order upon
the Carpentiers....
37. Next, on July 12th, 2010 REQUEST FOR SUBMISSION OF DEFENDANTS’
RESIDENTIAL CREDIT SOLUTIONS , INC. AND QUALITY LOAN SERVICE
CORPORATION’S MOTION FOR SUMMARY JUDGMENT, Hunter again puts
Department 4 in the case caption where Department 7 should be.
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38. Finally, on July 15, 2011 this Court granted District Court Rule 13 (3) provides,
"Failure of the opposing party to serve and file his written opposition may be construed as
an admission that the motion is meritorious and a consent to granting the same." Thus, in
this case, the court construes Plaintiffs', JAMES S. CARPENTIER and JOAN E.
CARPENTIER, and Defendants', AAMES FUNDING CORPORATION and WINDSOR
MANAGEMENT COMPANY'S failure to oppose Defendants' RCS and QLS's Motion/or
Summary Judgment as admission that the Motion is meritorious.”
39. The July 15, 2010 Notice of Entry of Order incorrectly list Department 4 instead of
Department 7 in the caption.
40. The Washoe County Recorder's web site does not list a Notice of Trustee
Sale for the alleged Trustee sale that was set to take place on December 21st, 2001
II. LAW AND ARGUMENT
I. The Order Granting Summary Judgment Entered Against Plaintiff

Should be Set Aside or Vacated Due to it being Void For Lack of Jurisdiction
Given the Numberous Deficiencies in Service of Essential Pleadings and Notices
Upon the Plaintiffs, Excusable Neglect, Fraud on The Court, an Intervening
Decision of the Nevada Supreme Court, Two of them, from July 7, 2011, and
The Overly Long Passing of Time Between Now and the Granting of the
Summary Judgment Order.
The excusable neglect argument is quite strong given Hitnz and Zimbleman's
continual failure to appropriately address their Proof's of Service for very, very
important documents. Might be a voidness basis for Setting Aside the Order As
Well. Further, the Order granting Summary Judgment is void given the lack of
jurisdiction possessed by this Court where so many essential deficiencies exists in
this matter related to the most pertinent filings and notices possible.
“Accordingly, when this court issues an intervening decision that constitutes a

change in controlling law, courts may depart from the decided law of the case and
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apply the new rule of law.” Hsu v. County of Clark. See, e.g., Hopkins v. Dyer, 104
Ohio St.3d 461, 820 N.E.2d 329, 333 (2004) (holding that an intervening opinion
issued by the Ohio Supreme Court constituted a change in controlling law
necessitating departure from the law of the case doctrine); Dedge v. State, 832 So.2d
835, 836 (Fla.Dist.Ct.App.2002) (noting that a decision by the Florida Supreme
Court to enact a new procedural rule constituted a change in controlling law).
“Because we determine that the change in controlling law exception to the law of the
case doctrine applies, we do not consider whether this court should also formally
adopt the “substantial new evidence” or “clear error resulting in manifest injustice”
exceptions to the law of the case doctrine. However, we observe that, despite the
landowners' contentions, discovery of a relatively minor factual error in our order in
Hsu I suggesting that the landowners' had obtained a 50-foot height variance for
construction of a billboard on their property does not constitute “substantial new
evidence” that justifies departure from the law of the case doctrine. Our
determination in Hsu I that the landowners had not demonstrated the futility of
exhausting their administrative remedies rested on several pieces of evidence besides
the erroneous “billboard variance,” indicating that this “new evidence” would have
little bearing on our previous decision. See Suel v. Secretary of Health and Human
Services, 192 F.3d 981, 986 (Fed.Cir.1999) (stating that “the new evidence relied
upon to override [the] law of the case must be substantial, even conclusive, before it
is appropriate to reopen a judgment on which subsequent phases of the case have
been decided” (citing 18 Charles Alan Wright, et al., Federal Practice and Procedure
§ 4478, at 800 (2d ed.1981))). We likewise reject the proposition that our decision
in Hsu I was based on clear error such that adherence to the decision would work a
manifest injustice. See In re City of Philadelphia Litigation, 158 F.3d 711, 720 (3d
Cir.1998) (noting that if a decision is not clearly erroneous, enforcement of that
decision will not generally work a manifest injustice).As this appeal and our decision
in Hsu I are part of a single continuous suit, we also reject the County's assertion that
the doctrine of res judicata prohibits this court from revisiting the merits of the
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landowners' takings claim. See Florida Dept. of Transp. v. Juliano, 801 So.2d 101,
105 (Fla.2001) (“Where successive appeals are taken in the same case there is no
question of res judicata, because the same suit, and not a new and different one, is
involved. Under these circumstances, the doctrine of the law of the case applies.”
(citation omitted)).”
On motion and upon such terms as are just, the court may relieve a party or a
party's legal representative from a final judgment, order, or proceeding for the
following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2)
newly discovered evidence which by due diligence could not have been discovered in
time to move for a new trial under Rule 59(b); (3) fraud (whether heretofore
denominated intrinsic or extrinsic), misrepresentation or other misconduct of an
adverse party; (4) the judgment is void; or, (5) the judgment has been satisfied,
released, or discharged, or a prior judgment upon which it is based has been reversed
or otherwise vacated, or it is no longer equitable that an injunction should have
prospective application. The motion shall be made within a reasonable time, and for
reasons (1), (2), and (3) not more than 6 months after the proceeding was taken or the
date that written notice of entry of the judgment or order was served. In some
instances “tolling” may be applicable to the 6 month limitations period.
The Nevada Supreme Court recently addressed a critical issue involving the
Foreclosure Mediation Rules in the case of Leyva v. National Default Servicing
Corp., App. No. 55216, Appeal from the Clark Co. District Court, A-10-600-651,
127Nev. ___, ___ P.3d ___ (Adv. Op. No. 40, July 7, 2011). The issue relates to the
obligation of the lender to bring documents to the mediation that reveal who is the
owner of the deed of trust and mortgage note. The Court’s ruling in this case will
immediately arm homeowners with a serious weapon against the big banks and their
servicers. Used in the correct way, many foreclosures may be stopped because of this
recent opinion.
The State of Nevada Foreclosure Mediation Program was created in 2009. Facing
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foreclosure, the homeowner may request mediation through which a modification to
home loan may be achieved. Once the homeowner requests mediation, no further
action may be taken to exercise the power of sale until the completion of the
mediation. The Nevada Supreme Court created the Foreclosure Mediation Rules
(“FMR”) to govern those mediations.
The Leyva case presented the Nevada Supreme Court with an opportunity to
interpret a critical portion of the mediation program requirements. NRS 107.086(4)
and FMR 5 (8) (a) both provide: “In addition to the documents required by Rule 8
herein, the beneficiary [usually the lending bank] must bring to the mediation
program the original or a certified copy of the deed of trust, the mortgage note and
each assignment of the deed of trust and the mortgage note.” NRS 107.084(5)
provides that “[i]f the beneficiary of the deed of trust or the representative fails to
attend the mediation, fails to participate in the mediation in good faith or does not
bring to the mediation each document required by section 4 or does not have
authority or access to person with authority required by section 4, the mediator shall
prepare and submit to the Mediation Administrator a petition and recommendation
concerning imposition of sanctions against the beneficiary of the deed of trust or the
representative, as the court deems appropriate, including, without limitation,
requiring a loan modification in the manner determined proper by the court.”
The Nevada Supreme Court faced the issue of whether the lender’s failure to
bring the required assignments and other documents as required by NRS 107.086(4)
constituted bad faith under NRS 107.086(5). The answer to the question is not clear
from the language of the statute or the FMR.
At the mediation in Leyva, the lender failed to deliver the assignments of the
deed of trust and the mortgage note. However, the mediator did not find that the
lender’s failure to provide the documents or other actions constituted a bad faith.
Leyva disagreed and appealed the decision of the mediator to the Clark County
District Court, Judge Donald Mosely. Ultimately, Judge Mosely agreed with the
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lender and entered an order finding that “there is a lack of showing of bad faith…”
Leyva appealed the decision of Judge Mosely to the Nevada Supreme Court. The
Nevada Supreme Court issued its ruling on July 7, 2011 and rejected the lender’s
arguments that it had participated in the mediation in good faith. The Nevada
Supreme Court determined that since the statute used the word “shall” in reference to
the obligation to bring certain documents to the mediation, strict compliance, not
substantial compliance, was required. The Supreme Court went on the write “The
legislative intent behind requiring a party to produce the assignments of the deed of
trust and mortgage note is to ensure that whoever is foreclosing ‘actually owns the
note’ and has the authority to modify the loan.”
The Supreme Court did not stop there. It felt compelled to then discuss what
constitutes a valid assignment of deeds of trust and mortgage notes. By reaching this
issue, the Supreme Court set the obligations for each lender with regards to their
obligation to produce documents at mediation.
The Supreme Court then discussed the law regarding the assignment of a deed of
trust. Since an assignment of an interest in land must be in writing, the Supreme
Court concluded that “to prove that MortgageIt properly assigned its interest in land
via the deed of trust to Wells Fargo, Wells Fargo needed to provide a signed writing
from MortageIt demonstrating that transfer of interest.”
The Supreme Court then analyzed the method by which the interest in a mortgage
note may be transferred and looked to Nevada’s Uniform Commercial Code –
Negotiable Instruments. The Supreme Court wrote “[t]he obligor on the note has the
right to know the identity of the entity that is “entitled to enforce” the mortgage note
under Article 3, see NRS 104.3301, “[o]therwise, the [homeowner] may pay funds to
a stranger in the case.” (Citation omitted.)
The Supreme Court rejected the arguments of Wells Fargo that mere possession
of the mortgage note was sufficient. “[W]e conclude that Article 3 clearly requires
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Wells Fargo to demonstrate more than mere possession of the original note to be able
to enforce a negotiable instrument under the facts of this case.” To meet its
obligation under the Uniform Commercial Code, Wells Fargo had to show both
endorsement of the mortgage note to it by the original lender and possession of the
note.
Alternatively, Wells Fargo could have also demonstrated a transfer of the note to
it. To demonstrate a transfer, Wells Fargo was obligated to prove that it was given
the mortgage note for the purpose of enforcing it.
The Supreme Court then concluded that since Wells Fargo had failed to produced
documents to demonstrate either a valid endorsement or transfer, Wells Fargo had
neither demonstrated that it was entitled to foreclose on the property nor that it had
authority to mediate with regards to the note. The Supreme Court, relying on its other
opinion issued the same day, Pasillas v. HSBC Bank, 127Nev. __, __ P.3d __, Adv.
Op. 39, July 7, 2011), ruled that the failure of Wells Fargo to bring the required
documents “is a sanctionable offense under NRS 107.086 and the FMRs.” The
Supreme Court then remanded the case to the district court for determination of the
appropriate sanction.
This opinion seems to indicate that the “too big to fail” banks have met their
match with the Nevada Supreme Court. The ramifications of this opinion will make
the huge banks think twice before they allow the Nevada Supreme Court to hear any
other issues concerning their foreclosure processes. This opinion arms homeowners,
and especially their counsel, and creates an opportunity to stop the banks and their
servicers from moving forward with a foreclosure with less that the full
documentation proving their ownership of the mortgage note, and the authority to
foreclose under the terms of the deed of trust.
The true scope and impact of the Leyva and Pasilla opinions on the foreclosure
and mediation process in Washoe County will not be revealed any time soon. The
banks will likely take any steps necessary avoid sanction as well as prevent the
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Nevada Supreme Court issuing any other opinions regarding the foreclosure process
or the mediation program.
the Supreme Court of Nevada issued two opinions on July 7, 2011 which finally
compel foreclosing parties in Nevada to produce material documentation as to chain
of title to the Note and Deed of Trust in order to be permitted to continue with a
foreclosure action when mediation is requested. in Leyva v. National Default
Servicing et al., No. 55216, 127 Nev. Advance Opinion 40, the Supreme Court held
that strict compliance is required with Nevada statutes governing the production of
certain documents including any assignment of the Deed of Trust; that a foreclosing
party’s failure to do so “is a sanctionable offense; and the district court is prohibited
from allowing the foreclosure process to proceed”. Wells Fargo was also the culprit
in this case.
Significantly, in discussing the transfer of the Note, the Supreme Court of

Nevada cited to the recent In Re Veal decision from the 9th Circuit Bankruptcy
Appeals Panel (which was previously discussed on this website), holding that the
borrower “has the right to know the identity of the entity that is ‘entitled to enforce’
the mortgage note under Article 3 (of the Uniform Commercial Code).” The Court
concluded that Article 3 “clearly requires Wells Fargo to demonstrate more than mere
possession of the original note to be able to enforce a negotiable instrument”. The
court found that there was no endorsement and no assignment, and reversed the
District Court.
The opinion in Leyva cited to the Court’s opinion in Pasillas v. HSBC Bank as
Trustee, No. 56393, 127 Nev. Advance Opinion 39 (also decided July 7, 2011),
which also reversed the District Court and also cited to Veal , setting forth the
requirements for production of evidence of chain of title to the note and Deed of
Trust in a foreclosure.
The multiple citations to Veal, which is a Federal Bankruptcy appellate court

opinion, by the state Supreme Court of Nevada, is more than important. It
317
demonstrates that simply because a foreclosure issue is decided by a Bankruptcy
court does not mean that it is not applicable to a non-Bankruptcy (or non-Federal)
foreclosure case. Time and again, when we argue that an issue in a state foreclosure
case has already been decided by a Bankruptcy court in the foreclosure context,
attorneys representing foreclosing “lenders” and servicers argue “Well, Judge, that
was a Bankruptcy case, and we are not in Bankruptcy Court”. Leyva and Pasillas
have now put that argument to bed. If a Federal Bankruptcy decision is good enough
for the Supreme Court of Nevada in two separate opinions, it should be good enough
for any state court.
Attorney Misconduct May Support Setting Aside the Order, For a Good
Faith Basis for Changing the Law May Auger Toward Holding Opposing
Counsel's Failur to Withdraw the Motion for Summary Judgment or Otherwise
Alert the Court as to the Likely Effect of Very Proximate Time Release of two
Mandatory and Controlling Nevada Supreme Court Decisions Issued One Week
Before This Court's Order May Rise to Positive Misconduct Given the Primacy
of the Subject Matter of This Litigation to these, At That Time, Pro Se
Litigants.
In Staschel v. Weaver Brothers, Ltd., 98 Nev. 559, 655 P.2d 518 (1982),
the Nevada Supreme Court held that attorney neglect amounting to misconduct is not
properly imputed to the client in determining whether a default judgment should be
set aside. ("To characterize [the attorney's] failure to represent his client as
'inexcusable neglect' would be charitable but hardly candid. His dereliction of the
professional obligations owed appellant constituted actual misconduct."). See
generally, S. Bernstein, Annotation, Attorney's Inaction as Excuse for Failure to
Timely Prosecute Action, 15 A.L.R.3d 674 (1968). California acknowledged this
problem in the 1960s, and concluded that inaction and sloth by an attorney should not
318
be grounds for a circuit court to inflict suffering upon an innocent client of the
attorney, by dismissing the client's case. In Davey v. County of Butte, 227
Cal.App.2d 380, 38 Cal.Rptr. 693 (1964), an intermediate court of appeals examined
a situation where the Defendant's lawyer filed a lawsuit, and then dawdled for nearly
two years, only sporadically doing discovery or filing pleadings. When the
Defendant's lawyer failed to show up for several scheduled court hearings, the circuit
court dismissed the Defendant's complaint due to inactivity. The court recognized the
general rule - similar to that in this State that the "general doctrine charges the client
with the neglect of his attorney but gives him redress against the latter." 227
Cal.App.2d at 391, 38 Cal. Rptr. at 700. However, the court went on to alter this
harsh rule, holding that "there are exceptional cases in which the client, relativel free
from personal neglect, will be relieved of a default or dismissal attributable to the
inaction or procrastination of his counsel. " Id. The court found that the Defendant's
attorney's neglect was inexcusable and extreme, amounting to positive misconduct.
[The attorney's] consistent and long continued inaction was so visibly and inevitably
disastrous, that his client was effectually and unknowingly deprived of
representation. By his refusal to get on with the lawsuit or get out of it, [the
Defendant's [attorney] inflicted severe damage on his client's case. She had legal
representation only in a nominal and technical sense.
Under these unusual circumstances, where the client was unknowingly
deprived of effective representation, she will not be charged with responsibility for
the misconduct of her nominal counsel of record. 227 Cal.App.2d at 391-92, 38
Cal.Rptr. at 700. The court then stated the rule - known as the "positive misconduct"
rule - that where an attorney's inaction rises to a level of active, positive misconduct,
319
the "attorney's authority to bind his client does not permit him to impair or destroy
the client's cause of action." 227 Cal.App.2d at 391, 38 Cal. Rptr. at 700. The
reasoning for such a rule is obvious: Clients should not be forced to act as hawk like
inquisitors of their counsel, suspicious of every step and quick to switch lawyers.
The profession knows no worse headache than the client who mistrusts their
attorney. The lay litigant enters a temple of mysteries whose ceremonies dark,
complex and unfathomable. Pretrial procedures are cabalistic rituals of the lawyers
and judges who serve as priests and high priests. knows nothing of their tactical
significance.
He knows only that his case remains in limbo while the priests and high
priests chant their lengthy an arcane pretrial rites. He does know this much: that
several years frequently elapse between the commencement and trial of lawsuits.
Since the law impose this state of puzzled patience on the litigant, it should permit
him to si back in peace and confidence without suspicious inquiries and incessant
checking on counsel. 227 Cal.App.2d at 391-92, 38 Cal.Rptr. at 700-701. The
California Supreme Court adopted the positive misconduct rule stated in Da~ey in
Carro~~ v. Abbott Laboratories, Inc., 654 P.2d 775 (1982). The court stated the
general rule that a client is charged with the neglect of his counsel, and that the
client's usual redress for that neglect is an action for malpractice. However, an
exception to this general rule has developed. Excepted from this rule are those
instances where the attorney's neglect is of that extreme degree amounting to positive
misconduct, and the person seeking relief is relatively free from negligence. The
exception is premised upon the concept the attorney's conduct, in effect, obliterates
the existence of the attorney-client relationship, and for this reason his negligence
320
should not be imputed to th client. 654 P.2d at 778 (emphasis in original). The court
went on to state that "[t]he issue, therefore, becomes whether counsel's conduct
amounted to 'positive misconduct' by which Defendant was 'effectually and
unknowingly deprived of representation.'" Id.
In accord, Lords v. Newman, 688 P.2d 290, 294-95 (Mont. 1984) (holding
that when case is dismissed due to attorney negligence, "no great abuse of discretion
need be shown to warrant reversal" because the ~court has been hesitant to impute
the neglect of an attorney to his client; and has been loathe to permit this neglect to
bar a hearing on the merits."); Staschel v. Weaver Bros. Ltd., 655 P.2d 518, 519
(Nev. 1982) ("To characterize [the attorney's] failure to represent his client as
'inexcusable neglect' would be charitable but hardly candid. His dereliction of the
professional obligations owed appellant constituted actual misconduct."). See
generally, S. Bernstein, Annotation, Attorney's Inaction as Excuse for Failure to
Timely Prosecute Action, 15 A.L.R.3d 674 (1968). (James Mi~ton Covington and
Jera~dine I. Covington v. Michael John Smith, Walter Lee Forbis, Ryder Truck
Rental, Inc. and D.T.F. Trucking, Inc. (Case 30734, Sup. Ct of Appeals, West
Virginia July, 11, 2003) . order and/or judgement that was clearly erroneous and
contrary to law on the 60(b) motion which Plaintiffs submitted to this court to set
aside judgement and/or order of the 60(b) motion for excusable neglect predicated on
multiple medical issues and the precedent setting case of Pioneer Investment Services
v. Brunswick Associates Limited Partnership et.al. 507 U.S. 380: 113 S.Ct. 1489;
123 L. Ed 2d 74;1993 U.S. LEXIS 2402; 61 U.S.L.W. 4263; 25 Fed R.Serv. 3d
(Callaghan) 401; Bankr. L. Rep. (CCH) P75, 157A; 28 Collier Bankr.Cas. 2d (MB)
267;24 Bankr Ct Dec.63; 93 Cal Daily Op Service 2096; 93 DAR 3705; 7 FLA L.
Weekly Fed. S 101.
The particular facts and circumstances of the Carpentier's case deserve closer
consternation, particularly in light of the fact that Leyva and Pasilla actually were
issued prior to this Court's July 15, 2011 Order granting Summary Judgment, the
321
manifest injustice that results from leaving the Order as it is and allowing the
Trustee's Sale to go forward. Further, Pursuant to NRS 107.080, the requisite
statutory 20 days notice is, on its face, not present in the notice to the Carpentiers.
Further, the assignments have arguably not been produced or attested to in the
manner required by law, and the bald face arrogance of the lender's and trustee's
street level employees in telling the Carpentier's that, basically, they are in a fight
with a big ugly bully and its “our word against yours” you little puny pathetic so to be
no longer homeowners.
CARPENTIER received a Notice of Sale indicating that their lender

would sel1 their home at auction on October 21, 2011, following their default in their
mortgage payments. The home remains occupied by the title owner. The Notice of
Sale did not give Joni or James Carpentier the requisite notice of the date of the
foreclosure sale. Pursuant to NRS 107.080, the foreclosure trustee must record a
Notice of Sale and give notice of the time and place of the sale by (1) personally
serving or mailing the notice by registered or certified mail to homeowner and others
"entitled to notice"; (2) posting the notice in a public place where the property is
located for 20 successive days; (3) publishing a copy of the notice 3 times (once a
week for three weeks); AND (4) posting the notice on the property 15 days before the
sale date. The Notice of Sale was recorded on October 3 with a sale date of October
21. This is only an 18 day notice period. This fails to comply with at least section (2)
above, and perhaps section (4) should they fail to post the notice on the property on
or before October 6, depending upon whether section (4) requires that action to occur
within 90 days or to occur only after the passing of 90 days.
The substitution of Quality Loan Servicing as the foreclosure trustee was

not recorded. Under the Deed of Trust Recorded on April 18, 2005, Windsor
Management Co. was named as the Trustee. No document could be found with the
Recorder's Office indicating any entity substituted Quality Loan Servicing as the
foreclosure trustee under the Deed of Trust.
322
Defendant's have substantially departed from the notice, manner of service, and
process requirements of various law, including, but not limited to NRS 107.080.
When inquiry was made with Defendant's as to the basis, reasoning, and justifications
for the departures, Plaintiff's were told that “its your word against ours” and
otherwise responded to in a hostile, aggressive, and deceptive manner. More
discovery is in order in this regard. This pleading is further filed with an eye towards
asserting a NRCP 59 basis for challenging the July 15, 2011 order (somehow a
tolling argument will need to be made to overcome the 10 day requirement for such a
motion, and the same could be said for making a Motion for Reconsideration where
more than 20 days have past since
Conclusion
WHEREFORE, Plaintiffs respectfully request this Court order as follows:
1. For damages in excess of $10,000;
2. For treble damages; and any sanctions appropriate under any applicable law,
including the two recent Nevada Supreme Court decisions of July 7, 2011, Passila and
Leyva.
3. For temporary restraining order, preliminary injunction and permanent injunction

barring foreclosure of the Deed of Trust recorded in favor of Defendant AAMES and any
succesor in interest.
4. For temporary restraining order, preliminary injunction and permanent injunction

barring the contemplated and scheduled Trustee's Sale set for October 21, 2011.
5. For costs of suit herein incurred; and for attorneys fee;
6. For such other and further relief as this court may deem proper.
DATED this 19th day of December, 2011:
323
/s/ Zach Coughlin
Zach Coughlin, Esq.
Attorney for Plaintiffs Joni and James Carpentier
324
PROOF OF SERVICE
I, Zach Coughlin, declare, that on December 19, 2011, I caused the forgoing to
be deliver to all named Defendant's in this action, but electronic filing to:
Kristin A. Schuler-Hintz, Esq.

McCarthy & Holthus, LLP
9510 W. Sahara Ave., Suite 110
Las Vegas , NV 89117
Phone: 702-685-0329
Fax: 866-339-5691
khintz@mccarthyholthus.com
Atty for DEFT'S RESIDENTIAL CREDIT SOLUTIONS INC, AND QUALITY
LOAN SERVICE CORPORATION'S
And via delivering to their attorney's of record by fax, email and depositing a true
and correct copy of this document in the US mail on this date addressed to:
Eric B. Zimbelman, Esq.

Peel Brimley, LLP
2014 E. Madison, Suite 100
Seattle , WA 98122
Phone: 206-770-3339
Fax: 206-770-3490
ezimbelman@peelbrimley.com
Atty for DEFT'SWINDSOR MANAGEMETN CO. AND ACCREDITED
HOME LENNDERS, INC. AS SUCCESSOR IN INTEREST TO AAMES
FUNDING CORPORATION DBA AAMES HOME LOAN
DATED this 19th day of December, 2011:
/s/ Zach Coughlin

Zach Coughlin, Esq.
Attorney for Plaintiffs Joni and James Carpentier
325
INDEX TO EXHIBITS:
1.
2.
3.
4.
326
EXHIBIT 3
327
1
Zach Coughlin,Esq.
2 Nevada Bar No: 9473
3
121 River Rock St.
Reno, NV 89501
4 Tele: 775-338-8118
Fax: 949-667-7402
5 Attorney for Defendant Robert Keller
6
7 UNITED STATES BANKRUPTCY COURT

DISTRICT OF NEVADA
8
9
In Re: )
ROBERT KELLER ) Case No.: BK 10-52639-gwz
10
)
Debtor. ) Chapter 7
11 ) Adversary Proceeding
) No. 10-05104-gwz
12 )
THE CADLE COMPANY,
Plaintiff, )
13 ) OPPOSITION TO MOTION TO AMEND
) COMPLAINT IN ADVERSARY
14 v. )
) PROCEEDING
15
ROBERT KELLER, )
Defendant. Hearing Date: 12/7/10
16
Hearing Time: 10:00 AM
17
18
19
OPPOSITION TO MOTION TO AMEND COMPLAINT IN ADVERSARY PROCEEDING
20
This Motion is based on the following Memorandum of Points and Authorities as well
21
as Rule 7015 Fed. R. Bankr. P. and Rule 15(2) Fed. R. Civ. P.
22
23 MEMORANDUM OF POINTS AND AUTHORITIES

I.
24 STATEMENT OF UNDISPUTED FACTS
25
On July 2, 2010, Debtor/Defendant ROBERT KELLER (hereinafter “Keller” or “Defendant”)
26
filed a Voluntary Petition for Relief under Chapter 7 of Title 11, U.S.C. The 341 Meeting was held
27
on August 12, 2010 and Plaintiff filed its adversary complaint against Defendant Keller on October
28
- 1 -
328
1 12, 2010 with causes of action for nondischargeability under 11 U.S.C. §§ 523(a)(2)(A), 523(a)(4)
2 and res judicata. After thoroughly failing to even begin completely litigating the issues (so much so
3
that no Stipulated Findings of Fact is to be found anywhere) and without a second of trial taking
4
place, many assurances being made by the Texas prosecutors Bitting et al to Keller and Keller's then
5
6
attorney Chester Brown (who died suddenly in 1998 and left his widow to attempt the task of
7 dispensing his massive collection of files held only in hard copy format to Brown's clients, including
8 Keller, in a very haphazard way) that the State of Texas did not intend to collect on or execute the
9
Judgement against Keller. This is evinced by the lack of any language in the Judgment purporting to
10
incorporate by reference anything in the Complaint and by the lack of any language purporting to
11
find fraudulent conduct on Keller's part of that Keller was adjudged to be either a fiduciary or in a
12
13 “trust” relationship with any of the involved parties or individuals. Keller sent the Defendant Keller
14 consented to the entry of judgment in the amount of $500,000.00 (in May, 1995), and the judgment
15
entered is very short, containing no mention of incorporating by reference anything in the typically
16
overcharged Complaint, no citation to any Stipulated Findings of Fact, no language speaking to any
17
admission of wrongdoing or fraudulent conduct of any kind, nor any language purporting to establish
18
19 either a fiduciary or trust relationship between Keller and anyone. Further, the judgement lacks any
20 language finding Keller an officer or director of either entity. It is really not at all clear how
21
opposing counsel O'Rourke can sign a declaration that purports to have non-hearsay, first hand
22
knowledge, as required by LR 9014(C), that swears, under penalty of perjury, that: “6. After
23
thoroughly litigating the issues but prior to trial, Defendant Keller consented to the entry of judgment
24
25 in the amount of $500,000.00 (in May, 1995) based on causes of action for: fraud in real estate
26 transactions, common law fraud, a Texas Insurance Code violation for the improper pledge or
27
hypothecation of AGULIC’s assets, corporate alter ego, Texas Deceptive Trade Practices –
28
- 2 -
329
1 Consumer Protection Act violations, fraudulent conveyance, conspiracy to fraudulently convey, and
2 violations of 18 U.S.C. § 1962 (Racketeering Influenced and Corrupt Organizations Act).” How in
3
the world would opposing counsel O'Rourke, all the way up there in Seattle, representing some Ohio
4
corporation that bought a Judgment from a Receiver in Texas dating back almost 17 years, involving
5
6
an opposing party whose attorney died in 1998, possibly be able to sign a declaration that states, with
7 any credibility, that “After thoroughly litigating the issues but prior to trial, Defendant Keller
8 consented to the entry of judgment in the amount of $500,000.00 (in May, 1995) based on causes of
9
action for....”? Certainly, opposing counsel O'Rourke isn't finding a basis for declaring whether the
10
issues were “thoroughly litigated” and upon what any consent to entry of judgment by Keller was
11
“based on” by anything in the Judgment, as it is blissfully short and sweet and devoid of any
12
13 admission of fraud or misconduct by Keller, any incorporating language for other documents, such as
14 the Complaint, any Stipulated Findings of Fact, etc... All the Judgment contains, pretty much, is a
15
sentence saying Keller agreed to be adjudged owing the Receive damages of $500,000. That is like
16
saying a criminal defendant charged with treason, smuggling nuclear weapons, serial murder, and
17
jaywalking thoroughly litigated the issues and cannot later say he never admitted to nor was found
18
19 guilty of the charges other than jaywalking where he signed a Stipulated Judgment finding him guilty
20 for the jaywalking fine....Remember, over $20,000,000 worth of equity was curioulsy confiscated by
21
the Texas Receiver, despite approximately 95% of the liability being allocated to a
22
megaconglomerate reinsurer. How AGL and AGUILA were “insolvent” when they had $20 million
23
for the Texas Receiver to confiscate is pretty unclear, but its not anywhere near as unclear as the
24
25 contention that the issues of Keller's being a fiduciary or in a trust relationship or have a debt
26 involving fraudulent conduct adjudged against him had been “thoroughly litigated”. Further,
27
contrary to Cadle's assertions, it is not clear that Defendant failed to list or schedule or otherwise add
28
- 3 -
330
1 by amendment the non-dischargeable United Healthcare debt stemming from 1990 in the more recent
2 Chapter 7 filing, or even that he had a duty to, and bringing this up is unduly prejudicial towards
3
Keller and says more about Cadle's tactics than anything.
4
A few days before the filing of the adversary proceeding, Plaintiff conducted an
5
6
examination of Defendant pursuant to Rule 2004 F.R. Bankr. P. Plaintiff finally got around to
7 conducting a dubiously brought examination of Defendant’s wife, Samantha Hall, on April 18, 2011.
8 Plaintiff has made not attempt to explain why it is a simple search of Pacer or court records would not
9
have revealed the incredibly easy to discover fact that Keller filed a Chapter 7 bankruptcy petition in
10
1990. Plaintiff in no way specifies in any detailing whatsoever specifically how, at “both
11
examinations, Plaintiff learned additional facts to support the novel cause of action contained in its
12
13 Amended Complaint.” What facts? How do they support the new cause of action in the Amended
14 Complaint? Plaintiff provides no support for an argument that such “facts” were not easily
15
discoverable through a reasonably diligent inquiry by Plaintiff, such as checking courts records or
16
Pacer to see if a previous bankruptcy had been filed by Keller. It does not take a great big billing
17
event like deposing Keller and his wife to find that out, and further, Plaintiff's failure to do so is not
18
19 excused merely by the fact that Plaintiff may have subsequently become aware of the 1990 filing via
20 the depositions. The point is, a reasonably diligent inquiry by Plaintiff would have revealed the 1990
21
filing, and Plaintiff has made no attempt to establish that the depositions of Keller and his wife yield
22
any “special” information that would excuse Plaintiff's earlier lack of diligence or the undue burden
23
and expense is has caused Keller. What is clear is that Keller can produce a cover letter and FedEx
24
25 billing of lading that were mailed along with the Stipulated Judgment on the eve of trial on that
26 specifically refer to the talks and documents involved in incorporating into the Stipulated Judgment
27
the Settlement Agreement Keller can produce (if not more, depending upon what is recoverable from
28
- 4 -
331
1 Bitting and Brown's dusty files) dated April 10, 1995, that more clearly sets for the fact that Keller
2 did not stipulate to any fraudulent conduct or a fidicuary or trust relationship in connection with the
3
Judgment entered in May 1995. Certainly, even if something isn't found in Bitting (the Receiver's
4
attorney) or Keller's old counsel Brown's files, the April 10, 1995 Settlement Agreement and the
5
6
cover letter and FedEx bill of lading Keller can produce and which were mailed along with Keller's
7 signed Stipulated Judgment on March 23 or thereabouts, placed the onus on Bitting and the Receiver
8 to make some affirmative action to disavow the contentions made by Keller therein with respect to
9
the excuplatory nature of the discussions and documents connected to the Judgment entered in May
10
1995.
11
II.
12
LEGAL ANAYLSIS
13
Amendment of complaint A party may amend the party's pleading once as a matter of course at
14
any time before responsive pleading is served or, if the pleading is one to which no responsive
15
16 pleading is permitted and the action has not been placed upon the trial calendar, the party may so
17 amend it at any time within 20 days after it is served; otherwise a party may amend the party's
18
pleading only by leave of court or by written consent of the adverse party, and leave must be freely
19
given when justice so requires. Fed. R. Civ. P. 15(a), made applicable in adversary proceedings by
20
Fed. R. Bankr. P. 7015. This rule is applicable to complaints objecting to discharge. Fourth Circuit In
21
22 re Tester, 56 B.R. 208 (W.D. Va. 1985). 5B Fed. Proc., L. Ed. § 9:1750A bankruptcy court lacks
23 authority to grant an untimely motion to amend an adversary complaint to state new causes of action
24
objecting to discharge where such motion is not filed until after the deadline for objecting to
25
discharge. Eighth Circuit In re Bozeman, 219 B.R. 253 (Bankr. W.D. Ark. 1998), aff'd, 226 B.R.
26
627, 42 Fed. R. Serv. 3d 416 (B.A.P. 8th Cir. 1998). Whenever the claim or defense asserted in the
27
28 amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set
- 5 -
332
1 forth in the original pleading, the amendment relates back to the date of the original pleading. Fed. R.
2 Civ. P. 15(c)(2), made applicable in adversary proceedings by Fed. R. Bankr. P. 7015. Thus, a
3
proposed amendment to a complaint objecting to discharge may relate back to the time of the filing of
4
the original complaint. Fourth Circuit In re Tester, 56 B.R. 208 (W.D. Va. 1985)
5
6
Fed. R. Civ. P. 15(a), as amended and effective December 1, 2009, provides that (1) a party
7 may amend its pleading once as a matter of course within: (A) 21 days after serving it, or (B) if the
8 pleading is one to which a responsive pleading is required, 21 days after service of a responsive
9
pleading or 21 days after service of a motion under Rule 12(b), (e(, or (f), whichever is earlier. Fed.
10
R. Civ. P. 15(c)(2) was redesignated as Fed. R. Civ. P. 15(c)(1)(B) in 2007. Additional discovery
11
that defendant would have to conduct if postconfirmation trust established under debtor's confirmed
12
13 Chapter 11 plan were allowed to amend its turnover complaint to allege that funds retained by
14 defendant related, not to debtor's prepetition shipments of goods, but to goods provided postpetition,
15
and that defendant's retention of funds thus violated automatic stay, did not rise to level of "undue
16
prejudice" of kind warranting denial of motion for leave to amend; trust was not asserting new count
17
with unrelated facts that would require parties to start discovery anew, and defendant could not be
18
19 surprised that trust was now attempting to amend its complaint to conform to the "new'' facts recently
20 asserted by defendant regarding pre- or postpetition nature of funds it was withholding. In re Fleming
21
Companies, Inc., 323 B.R. 144, 61 Fed. R. Serv. 3d 296 (Bankr. D. Del. 2005). Additional claims that
22
Chapter 11 trustee sought to assert, in his amended complaint, against bank that financed the
23
leveraged buyout (LBO) that he challenged as actually and constructively fraudulent transfer, for
24
25 bank's alleged improvident lending and aiding in breach of fiduciary duty, were not time-barred, but
26 related back to his original timely complaint, where these additional claims arose out of the same
27
facts as those that formed basis of trustee's original claims against bank. In re OODC, LLC, 321
28
- 6 -
333
1 B.R. 128 (Bankr. D. Del. 2005). "Undue prejudice'' to party opposing motion for leave to amend
2 complaint is more than mere inconvenience; it is found only where the party must overhaul its entire
3
litigation strategy. In re Fleming Companies, Inc., 319 B.R. 359 (Bankr. D. Del. 2005). Chapter 11
4
debtors' motion to amend their amended adversary complaint would be denied as untimely where,
5
6
although motion was made within extended period for making pretrial motions, debtors failed to
7 justify their extended and undue delay in waiting until well over a year after the parties had agreed
8 that the pleadings were "settled" to request further amendment, and to allow debtors to add new
9
causes of action and change the focus of the litigation after discovery had been completed, and after
10
defendants had invested significant time and money in preparing and presenting summary judgment
11
motions on the pleadings, would have been prejudicial to defendants. In re Thorian, 387 B.R. 50
12
13 (Bankr. D. Idaho 2008).
14 Plaintiff has made not attempt to explain why it is a simple search of Pacer or court records
15
would not have revealed the incredibly easy to discover fact that Keller filed a Chapter 7 bankruptcy
16
petition in 1990. Plaintiff in no way specifies in any detailing whatsoever specifically how, at “both
17
examinations, Plaintiff learned additional facts to support the novel cause of action contained in its
18
19 Amended Complaint.” What facts? How do they support the new cause of action in the Amended
20 Complaint? Plaintiff provides no support for an argument that such “facts” were not easily
21
discoverable through a reasonably diligent inquiry by Plaintiff, such as checking courts records or
22
Pacer to see if a previous bankruptcy had been filed by Keller. It does not take a great big billing
23
event like deposing Keller and his wife to find that out, and further, Plaintiff's failure to do so is not
24
25 excused merely by the fact that Plaintiff may have subsequently become aware of the 1990 filing via
26 the depositions. The point is, a reasonably diligent inquiry by Plaintiff would have revealed the 1990
27
filing, and Plaintiff has made no attempt to establish that the depositions of Keller and his wife yield
28
- 7 -
334
1 any “special” information that would excuse Plaintiff's earlier lack of diligence or the undue burden
2 and expense is has caused Keller. What is clear is that Keller can produce a cover letter and FedEx
3
billing of lading that were mailed along with the Stipulated Judgment on the eve of trial on that
4
specifically refer to the talks and documents involved in incorporating into the Stipulated Judgment
5
6
the Settlement Agreement Keller can produce (if not more, depending upon what is recoverable from
7 Bitting and Brown's dusty files) dated April 10, 1995, that more clearly sets for the fact that Keller
8 did not stipulate to any fraudulent conduct or a fidicuary or trust relationship in connection with the
9
Judgment entered in May 1995. Certainly, even if something isn't found in Bitting (the Receiver's
10
attorney) or Keller's old counsel Brown's files, the April 10, 1995 Settelment Agreement and the
11
cover letter and FedEx bill of lading Keller can produce and which were mailed along with Keller's
12
13 signed Stipulated Judgment on March 23 or thereabouts, placed the onus on Bitting and the Receiver
14 to make some affirmative action to disavow the contentions made by Keller therein with respect to
15
the excuplatory nature of the discussions and documents connected to the Judgment entered in May
16
1995.
17
Allowing Cadle to amend here certainly would amount to undue prejudice to Keller. Already,
18
19 just to file this Opposition, Keller has been forced to procure the services of the undersigned, and
20 absent that, Keller would be paying a weekend plumber's emergency ransom to address a situation
21
caused by O'Rourke's failure to run a name search for Keller to discovery previous bankruptcy's and
22
the dockets therefrom. O'Rourke should surely be aware of and able to use Pacer. Further,
23
O'Rourke, whose aggresive litigating is having a deleterious effect on Keller for sure, doesn't even
24
25 bother to cite a single case in support of his "res judicata" argument (wouldn't that argument work the
26 other way too, i.e, since there was no language specifically incorporating by reference the allegations
27
28
- 8 -
335
1 of the Complaint in the Judgment, the issue that Keller committed no fraud is barred by issue or claim
2 preclusion?)
3
Qwest Communications Intern., Inc. v. AT & T Corp., 114 S.W.3d 15 Tex.App.Austin,2003
4
Court rendering agreed judgment must do so in strict or literal compliance with settlement agreement.
5
6
Vernon's Ann.Texas Rules Civ.Proc., Rule 11. Issues of fraud or willful evasion of taxes were never
7 actually litigated or admitted as to debtor 1984 tax liabilities in litigation before Tax Court, and thus,
8 debtor was not collaterally estopped to deny nondischargeability of 1984 tax debt based on his
9
consent to decision by United States Tax Court of decision imposing fraud penalties, where no
10
admissions, factual findings, or intention of parties concerning fraud issue or willful evasion for 1984
11
taxes were incorporated into Tax Court decision, government admitted in its answer that fraud
12
13 penalties, which were only discernible reason from face of Tax Court decision for denying
14 dischargeability of 1984 tax liability, were dischargeable, and stipulated entry of decision was bare
15
of any factual support. Bankr.Code, 11 U.S.C.A. § 523(a)(1)(C). In re Goff, 180 B.R. 193, Bankr. L.
16
Rep. (CCH) P 76497, 75 A.F.T.R.2d 95-2531 (Bankr. W.D. Tenn. 1995).
17
15 A.L.R. Fed. 2d 337 (Originally published in 2006) See page 149 thru 160 specific to
18
19 insurance industry. "Where the Insurance Commissioner of the State of West Virginia
20 (Commissioner) was appointed the receiver and liquidator of an insolvent life insurance company,
21
and the Commis- sioner sued the former directors of the life insurance company, the court in In re
22
Wilbur, 1997 WL 375687 (Bankr. M.D. Fla. 1997), found that the Commissioner failed to present
23
evidence that a debtor former director committed fraud while acting in a fiduciary capacity, since the
24
25 state court's holdings regarding the debtor's fiduciary role did not satisfy the requirements of the
26 discharge exception for fraud or defalcation while acting in a fiduciary capacity under 11 U.S.C.A. §
27
523(a)(4). Florida Department of Insurance, in its capacity as the receiver of insolvent insurance
28
- 9 -
336
1 companies, brought adversary proceedings against a bankrupt former officer and director to recover
2 for the former officer's alleged usurpation and breach of fiduciary duty and to except this
3
indebtedness from discharge, and on the debtor officer's motion for summary judgment, the court in
4
In re Blackburn, 209 B.R. 4 (Bankr. M.D. Fla. 1997), concluded that the general fiduciary duties
5
6
owed to a Florida corporation by its officers and directors were insufficient, by themselves, to support
7 the claim that the officers and directors stood in a "fiduciary capacity" to the corporation for debt
8 dischargeability purposes under 11 U.S.C.A. § 523(a)(4); 15 A.L.R. Fed. 2d 337 Page 160 15 A.L.R.
9
Fed. 2d 337 (Originally published in 2006). "The court In re Nordstrom, 8 Fed. Appx. 823 (9th Cir.
10
2001), held that no fiduciary relationship, for the purposes of the fiduciary fraud or defalcation
11
discharge exception of 11 U.S.C.A. § 523(a)(4), existed between the judgment-creditor and the
12
13 individual debtor as owner and operator of two related corporations engaged in the sale of insurance
14 where the creditor could not show the requisite express or technical trust between the parties. The
15
credit- or had been injured in an automobile accident and obtained a default judgment against the oth-
16
er driver, who was insured by an insolvent company that sold insurance through the debtor's
17
corporation. The creditor then filed a state court action against the debtor, individually and through
18
19 his companies, alleging that he had intentionally engaged in a fraudulent scheme to sell underfunded
20 insurance policies in violation of California law, and obtained judgment against the debtor
21
companies."
22
Rule 7015 Fed. R. Bankr. P., incorporating Rule 15 Fed. R. Civ. P., provides a standard for
23
the amendment of pleadings. After, where, as here, Defendant has already filed a responsive
24
25 pleading, leave to amend should be granted unless amendment would cause prejudice to the opposing
26 party, is sought in bad faith, is futile, or creates undue delay. Johnson v. Mammoth Recreations, 975
27
F.2d 604, 607 (9th Cir. 1992). In this case, Plaintiff should not be accorded leave to amend its
28
- 10 -
337
1 adversary complaint on all those accounts, and further, as Plaintiff and its counsel thoroughly fails to
2 specify in any detail whatsoever what additional information regarding Defendant’s actions and the
3
underlying judgment came to light after the filing of the initial adversary proceeding that a simple
4
name search for Keller on Pacer or the bankruptcy dockets or any other attempts at making a
5
6
reasonably diligent inquiry vis a vis Rule 9011 would have revealed. Speaking of 9011, opposing
7 counsel fails to cite to a single case supporting his truly creative res judicata argument, and the same
8 can be said, with ever more vigor about Plaintiff's failure to provide any legal support for what seems
9
to be their contention that Keller was under some legal duty to become a psychic and know that 3
10
years after the close of the bankruptcy Keller filed in 1990 that Keller would have a judgment against
11
him in Texas in 1995, though O'Rourke makes conclusory assertions in his pleadings that Keller's
12
13 "liability was clear" by the time the 1990 Ch. 7 filing was ending (not clear enough, apparently, to
14 prevent over three more years time passing before any judgment was rendered against Keller in
15
Texas, though), however, O'Rourke fails to cite even one case that would support his argument under
16
those circumstances, even if they could be proven. O'Rourke failed to cite a case for what seems to
17
be his argument that if Keller's liability was clear vis a vis the Texas matter, it should have been
18
19 scheduled in the 1990 Arizona bankruptcy filing by the time that ended sometime in 1992, and that,
20 Keller's failure to do so now subjects him to the cause of action that the Cadle Company now seeks to
21
add by amending its original Complaint in this adversary proceeding. Plaintiff’s amendment will
22
certainly delay the proceedings even further since each cause of action does not substantially overlap
23
or relates back to the original complaint. Actually, O'Rourke has not even established that this new
24
25 cause of action does relate back to SOMETIME BEFORE the filing of the original Complaint in
26 Texas (again, Cadle requiring Keller to be a psychic, apparently). Quite simply, the debt that
27
28
- 11 -
338
1 Defendant owes Plaintiff could not have possibly been listed or scheduled by the debtor in his earlier
2 case in the United States Bankruptcy Court of the District of Arizona and it is
3
therefore dischargeable under 11 U.S.C. § 523(a)(10), which reads that: "(10) that was or could have
4
been listed or scheduled by the debtor in a prior case concerning the debtor under this title or under
5
6
the Bankruptcy Act in which the debtor waived discharge, or was denied a discharge under section
7 727(a)(2), (3), (4), (5), (6), or (7) of this title, or under section 14c(1), (2), (3), (4), (6), or (7) of such
8 Act".
9
Bid protestor would be granted leave to file second amended complaint after it learned that
10
contract had been modified three times after re-award, notwithstanding defendants' objection that
11
amendment would be futile because jurisdiction was lacking over new claims which alleged facts
12
13 which occurred after contract award, as new claims alleged "material" post-award changes to the
14 contract, allowing retention of jurisdiction pursuant to the Competition in Contracting Act (CICA).
15
Information Sciences Corp. v. U.S., 80 Fed. Cl. 648 (2008). A motion to amend may be deemed futile
16
if a claim added by the amendment would not withstand a motion to dismiss. Shoshone Indian Tribe
17
of the Wind River Reservation, Wyoming v. U.S., 71 Fed. Cl. 172 (2006). A plaintiff would not be
18
19 allowed to amend a complaint where a plaintiff's claims were barred by res judicata or collateral
20 estoppel and otherwise did not come within the jurisdiction of the Court of Federal Claims, and thus
21
further amendment was futile. Saladino v. U.S., 62 Fed. Cl. 782 (2004).
22
Finally, defendant will thoroughly be prejudiced as a great deal of invasive discovery has
23
taken place to date already and Cadle has been provided conclusive proof that Keller's wife should
24
25 not be bothered by this litigation, much less be subject to even more invasive vexation even beyond
26 the Rule 2004 examination she has already been forced to submit to. Since so very much time has
27
now passed since the filing of this Adversary Proceeding, not to mention the couple of decades that
28
- 12 -
339
To: B4599J51-JOle-4bdb-9Jac-65cJ1ba From: zachcoughlln 11-19-11 5:14pm p. 91 of 91
• •
1 have passed since Keller's 1990 Arizona bankrutpcy filing, much less that complete and utter absence
2
of a nexus between that filing and the 1995 Judgment in Texas, to say nothing of the reputation the
3
Cadle Company have developed in State and beyond for scurrilous, vexatious litigation, the standards
4
of Rule 15 should yield an Order denying Plaintitrs Motion to Amend their Complaint.
5
III.
6
CONCLUSION
7
For the reasons cited above, Defendant respectfully requests that this Court enter an Order
8
denying The Cadle Company's Motion to amend its Adversary Complaint and perhaps consider
9
10 whether Keller is due something for his trouble in opposing a motion that didn't bother to cite to
11
much in the way of legal authority in support of its contentions.
12
DA TED this 23rd day of November, 2011.
13
14
15
16 lsi Zachary Barker Coughlin

Zachary Barker Coughlin, Esq.
17 Attorney for Defendant
18
19
20
21
22
23
24
25
26
27
28
- 13 -
340
From, zachcouqh11n 12-19-11 5,24pm p. 91 of 92
To. B4599357-307e-4bdh-93ac-65c32ba
• •
1 CERTIFICATE OF SERVICE AND MAILING
2 I HEREBY CERTIFY that on November 23" 2011 a true and correct copy of the foregoing was filed
in hard copy with the Clerk of Court in compliance with LR 5005, as the undersigned is not yet
3
registered to efile on the CM/ECF system. I filed and deposited in the U.S. Mail a true copy of the
4 within: OPPOSITION TO MOTION TO AMEND COMPLAINT IN ADVERSARY
PROCEEDING to:
5
6
MICHAEL P. O'ROURKE, ESQ.
7 Nevada Bar No. 6764
O'ROURKE LAW GROUP, PC
8 800 Fifth Avenue, Suite 4100
Seattle, Washington 98104
9
Telephone: (206) 477-1475
10 Facsimile: (206) 470-1150
orourkelawgroup@gmail.com
11
BRIAN J. SMITH, ESQ.

12
Nevada Bar No. 11279
13 Of Counsel to O'ROURKE LAW
GROUP, PC
14 700 South Third Street
Las Vegas, Nevada 89101
15
Telephone: (702) 380-8248
16 Facsimile: (702) 382-7595
Attorneys fOI' Plaintiff
17
18
19
20
21 Dated this 23th day of Novernber, 2011
22
/s/ Zach Cou
23
Zach Coughlin, Esq.
24 Attorney for Defendant Keller
25
26
27
28
- 14 -
OPPOSITION TO MOTION TO AMEND C�LAINT IN ADVERS� PROCEEDING
341
•
•
' -1-
I CASE NO.: 11 CR 22176

DEPT. NO.: 4
2
4 , .
, .
5 IN THE MUNICIPAL COURT OF THE CITY OF RENO,

6
7
8
ClTY OF RENO
9
Plaintiff,
10
11 vs. OPPOSITION TO
MOTION FOR NEW TRlAL
12 ZACHARY BARKER COUGHLIN,
13
Defendant.
14 1+- __ _ _ _ _____
_
1
15
The City of Reno, by and through John Kadlic, Reno City Attorney and Pamela Roberts,
16
Deputy City Attorney, opposes what appears to be Defendant Zachery Barker Coughlin's Motion
17
for New Trial. This Opposition is made pursuant to Reno Municipal Court Rule 4 and based on
18
the following Points and Authorities.
19
POINTS AND AUTHORlTIES
20
I. FACTS
21
On December IS, 2011 at approximately 3:4 6 PM, the City received a two page fax
22
(hereinafter "First Fax") from Defendant Zachary Barker Coughlin (hereinafter "Defendant").
23
See Declaration of Pamela Roberts. It appears to be a copy of an email Defendant sent to Deputy
24
City Attorney Chris Hazlett-Stevens, Deputy City Attorney Pamela Roberts and City Attorney
25
John Kadlic on Monday, December 12 , 20 11 at 9:52 PM. Id. At the top of the First Fax is the
26
heading "Here is service of the Motion for a New Trial, Set Aside, Va [ sic]." Id. at Exhibit A-I
27
and A- 2 .
28
342
•
1 On December 1 5 , 2 011 at approximately 4:01 PM, the City received a three page fax
2 (hereinafter "Second Fax") from Defendant. Id. This Second Fax has a one page "FAX COVER
3 SHEET" which indicates "RE: City of reno [sic] v Coughlin RMC 11 CR 22176 2 1 Motion for
4 New Trial." Id. at Exhibit 8-1, 8-2 and 8-3. The second and third pages of the Second Fax are
5 virtually identical to the First Fax received at approximately 3 :46 PM. Id.
6 On December 19,2 01 1 at approximately 5 :21 PM, the City received a 92 -page fax from
7 Defendant. Id. The first page thereof has a court and cause of this case and is entitled "Notice of
8 Denial of Service; Opposition City of Reno's Notice of Denial of Service; Request for
9 Clarification Regarding Deadline for Filing Motion For New Trial, Other Tolling Motions, etc.;
10 APPLICATION FOR DEFERRAL OR WAIVER OF COURT FEES AND COST" (hereinafter
11 "Notice-Opposition-Request-Application"). Id. The City presumes this has been filed with the
12 Court.
13
Contained therein is a "DECLARATION OF ZACH COUGHLIN" which contains two
14
references to a "Motion for a New Trial" and a "Motion for New Trial." See Notice-Opposition
15
Request-Application at "DECLARATION OF ZACH COUGHLIN" �3 and �15.
16 th
At �3,Defendant writes "I ... have faxed [Ms. Roberts] the December 13 Motion for a
17
New Trial, etc. to Ms. Roberts at her fax number." Id. The City did not receive such a fax or
18
Motion for a New Trial. See Declaration of Pamela Roberts.
19
At �15 ,Defendant writes "He did indicate that 'they' said the Motion for New Trial that I
20
had recently filed was timely, . . " See Notice-Opposition-Request-Application at
.
21
"DECLARATION OF ZACH COUGHLIN" at �1 5 . The City has not received proper service of
22
any filed Motion for New Trial. See Declaration of Pamela Roberts.
23
II. ARGUMENT
24
A. The City Was Not Served With Any Motion for New Trial via the First Fax.
25
The First Fax is merely a copy of an alleged email. See Declaration of Pamela Roberts
26
and Exhibits A-I and A-2 thereto. There is no Motion for New Trial attached thereto. Id. There
27
is no affidavit or affidavits and no points and authorities as is required by R.M.C.R. 4. Id.
28
343
•1 •
I B. The City Was Not Served W ith Any Motion for New Trial via the Second
Fax.
2
The Second Fax has a Fax Cover Sheet and then is merely a copy of an alleged email. Id
3
There is no Motion for New Trial attached thereto. Id. There is no affidavit or affidavits and no
4
points and authorities as is required by R.M.C.R. 4 . Id.
5
c. The City Has Not Been Properly Served - Indeed Has Not Received - Any
6 Motion For New Trial.
7 Defendant alleges in his Notice-Opposition-Request-Application that he filed with the
8
Court and served via fax a Motion for New Trial upon Deputy City Attorney Roberts and the
9
City. The City is unaware if Defendant has in fact filed a Motion for New Trial with the Court.
10
The City denies it was served via fax and denies that it was served at all with any Motion for
II
New Trial filed on or about December 13 or 15,2011.
12
III. CONCLUSION
13
Any Motion for New Trial filed by Defendant on or about December 13 or IS, 2011
14
should be denied for failure to serve the City.
15
16
Respectfully submitted this 10ft, day of December, 2011.
JOHN 1. KADLIC
17
Reno City Attorney
18
P� �
19
By: ---1.�
...J'. ��'-- ___
20 PAMELA ROBERTS
21
Reno City Attorney's Office
22 P.O. Box 1900
Reno, NV 89505
23 (775) 334-2050
24
25
26
27
28
344
1 DECLARATION OF PAMELA ROBERTS
2
STATE OF NEVADA )
3 ) :ss
COUNTY OF WASHOE )
4
I, Pamela Roberts, declare under penalty of perjury pursuant to NRS 53.045 that
5
the following it true and correct:
6
1. I am the Deputy City Attorney for the City of Reno and the Reno City Attorney's
7
Office.
8
2. 1
9 On December 15, 2011 at approximately 3:46 PM , the City received a two page
10 fax (hereinafter "First Fax") from Defendant Zachary Barker Coughlin (hereinafter
11 "Defendant"). An accurate copy thereof is attached hereto as Exhibit A-1 and A-
12 2. It appears to be a copy of an email Defendant sent to Deputy City Attorney
13 Chris Hazlett-Stevens, Deputy City Attorney Pamela Roberts and City Attorney
14 John Kadlic on Monday, December 12, 2011 at 9:52 PM. At the top of the First
15 Fax is the heading "Here is service of the Motion for a New Trial, Set Aside, Va
16 [sic]." See Exhibit A-1 and A-2 hereto.
17 3. 2
On December 15, 2011 at approximately 4:01 PM , the City received a three
18 page fax (hereinafter "Second Fax") from Defendant. An accurate copy thereof is
19 attached hereto as Exhibit 8 1, B-2 and B-3. This Second Fax has a one page
-
20
"FAX COVER SHEET" which indicates "RE: City of reno [SiC] v Coughlin RMC 11
21
CR 22176 21 Motion for New Trial." See Exhibit 8-1. The second and third
22
pages of the Second Fax are virtually identical to the First Fax received at
23
approximately 3:46 PM. See Exhibit B-2 and B-3.
24
25
1 The RECEIVED TIME stamp indicates 4:46 PM. However, on December 19,2011 at 2:45 PM, it was discovered
26 that the time stamp on the fax machine was off by one hour i.e., it stamped 3:45 PM when the time was actually 2:45
PM. Apparently, when Daylight Savings Time reverted to Standard Time on November 6, 2011, the time function
27 was not changed to reflect the reversion to Standard Time. The time stamp feature was corrected on December 19,
2011 at approximately 3:35 PM.
28
2 See Footnote 1 above.
345
e) •
1 4. On December 19, 2011 at approximately 5:21 PM, the City received a 92-page
2 fax from Defendant. The first page thereof has a court and cause of this case
3 and is entitled "Notice of Denial of Service; Opposition City of Reno's Notice of
4 Denial of Service; Request for Clarification Regarding Deadline for Filing Motion
5 For New Trial, Other Tolling Motions, etc.; APPLICATION FOR DEFERRAL OR
6 WAIVER OF COURT FEES AND COST' (hereinafter "Notice-Opposition
7 Request-Application"). The City presumes this has been filed with the Court.
8 Contained therein is a "DECLARATION OF ZACH COUGHLIN" which contains
9 two references to a "Motion for a New Trial" and a "Motion for New Trial." See
10 Notice-Opposition-Request-Application at "DECLARATION OF ZACH
11 COUGHLIN" 113 and 1115.
12 5. 13th
At 113, Defendant writes "I .. . have faxed [Ms. Roberts] the December
13
Motion for a New Trial, etc. to Ms. Roberts at her fax number." The City did not
14
receive such a fax or Motion for a New Trial.
15
6. At 1115, Defendant writes "He did indicate that 'they' said the Motion for New Trial
16
that I had recently filed was timely, .. . " See Notice-Opposition-Request
17
Application at "DECLARATION OF ZACH COUGHLIN" at 1115. The City has not
18
received proper service of any filed Motion for New Trial.
19
7. Pursuant to NRS 53.045, I declare under penalty of perjury that the foregoing is
20
true and correct. Executed on December 20, 2011.
21
22
23
PAMELA ROBERTS
24
25
26
27
28
346
:::::
�4a7773d6-e3a4-4e47-9478-346a591 from: zachcoughlin 11-15-11 3:49pm p. 1 of 1
Hotmail Print Message • Page lof2
Here is service of the Motion for a New Trial, Set Aside,

Va
From: Zath Coughlin (zachcoughlin@hotmail.coml

Sent Mon 12/12/11 9:52 PM
To: hazlett-stevensc@reno.gov; robertsp@reno.gov; kadlicj@reno.gov
Is it about time for you to get that CDJDVD that Walmar'ts AP guy
Faustino handed the two Reno Sparks Indian Colony officers when they
were leading the suspect away in cuffs... not the video you gave me of
sling blade badgering the lawyer I got those two videos you gave me
which just the badgering in the interrogation room. I am talking about
the cd/dvd that Walmart's guy gave them as they were walking
out.... Doesn't it seem like you really need to get that now, to stay on the
right side of Nifong? You remember Nifong, don't you. Walmart ap
guy sit there on the stand, under penalty of perjury and testify that no
video was collected in any way related to me or this case aside from the
2 interrogation room videos you provided (with a highly suspect 14mb
"codec" program required to view the videos ....can you indicate why
that is necessary to watch a simple old .avi file?).
why did you suborn the peIjury of both the walmart guy and the
officers regarding no other video existing? I can't figure that one out.
Ms. Roberts, don't you practice in RMC quite a bit? Maybe I am
confused, but doesn't the RMC rules permit serving a government
attorney such as yourself via email? What do you have against email?
It is economical for those of use who don't have such public largesse to
work with. Here is service of the Motion for a New Trial, Set Aside,
Vacate, etc., etc:
httpsJjskydrive.live.com/redir.aspx?cid-43084638f32f!if28&resid�43084638F321'!if-28!1031&parid=root
Its only something like 1,000 pages.
Zach Coughlin, Esq.

Reno, NY 89501
tel: 775338 8118
fax: 9496677402
Licellsed ill Nevada and USPTO
** Notice'J:1: This message and accompanying document.:; are covered by the electronic Communications Privacy
Act, 18 U. S C. §§ 2510-2521. and may contain confidential infonnation intended for the specified individual (5)
only. If you are not the intended recipient or an agent responsible for dehvenng it to the Intended reciplent, you are
hereby notified that you have receIved this document in error and that any review, dissemina tion, copying, or the
taking of any action based on the contents of thIS mformation IS strictly prohibited This message ;s confidential,
intended only for the named recipient(s) and may contain information that is privilesed, attorney work
EXHIBIT A-1
http://bjR(CE 1 V E 0 YfME1aiO EC, 15. n '4: 4'6 'PM'intMessages. aspx?cpids=8e4f3346-2207-426... 12115/2011 347
To: 4a777Jd6-eJa4-4e47-9478-J46a591 f,om: zachcoughlln 1Z-15-11 3:49pm p. � at l
Hotrnail Print Message • Page 2 0[2
product or enmpt from disclosure under applicable law. If you are not the intended recipient(s), you are
notified that any disclosure, copylns, distribution or any action taken or omitted to be taken in reliance on
destroy any copies in any form immediately. Receipt by anyone other than the named recipient(.) is not a
Date: Mon,
EXHIBIT A-2
'4: 4'6 ·PM·in Messages.aspx?cpids�8e4D346-2207-426... 12/15/2011
http://bYR(eElVED 'fIMeai6 EC. 15. IT t 348
Flom: zachcough!!n 12-15-11 4:04pm p. 1 of]
z..L c.up!m.i!Iq.
Reno, NV 89501
tel: 775 229-6737
fax: 949 667 7402
Nevada Bar No: 9473
FAX COVI1R SHEET
DATE: December 14, 2011
TO; .PUIl Robtlrts, Reno City Altomey, 775 334 2420
FAX NO: 775 334 2420

Number ofpages induding cover sheet 3
Original will nD� follow.

HE:. City of reno v Coughlin RMC 11 CR22176 21
MDlIod•• Now'lZlal
1 /3
EXHIBIT B-1
RECEIVED TIME DEC. 15. 5:01PM 349
To, 4a??73d6-e3a4-4e41-9418-346.�91 From' lachcoughlln 12-15-11 4,04pm p. 2 of J
Zach Coughlin. Esq.

Reno, NV 89501
Tel: please only communicate in wribng
fax:. 949667 74Q2

Licensed. in Nevada, NY Bar No: 9473
December 15th, 2011
Dear Ms. Roberts,
Here is service 0f the Motion for aNew Trial, Set

Aside,
Va
Sent: Mon 12/12/11 9:52 PM
To: hazlett-stevel'\sc@rel'\o.gov; robertsp@rel'\o.gov; kadlicj@rel'\o.gov
Is it about time for you to get that CDIDVD that Walmar'ts AP guy
Faustino handed the two Reno Sparks Indian Colony officers when they
were leading the suspect away in cuffs ... not the video you gave me of
sling blade badgering the lawyer I got those two videos you gave me
which just the badgering in the interrogation room. I am talking about
the cd/dvd that Walmart's guy gave them as they were walking
out.. ..Doesn't it seem like you really need to get that now, to stay on the
right side of Nifong? You remember Nifong, don't you. Walmart ap
guy sit there on the stand, under penalty of peIjury and testify that no
video was collected in any way related to me or this case aside from the
2 interrogation room videos you provided (with a highly suspect 14mb
"codec" program required to view the videos .... can you indicate why
that is necessary to watch a simple old .avi file?).
why did you suborn the peIjury of both the walmart guy and the
officers regarding no other video existing? I can't figure that one out.
Ms. Roberts, don't you practice in RMC quite a bit? Maybe I am
confused, but doesn't the RMC rules pernlit serving a government
2/3
EXHIBIT i-2.
350
RECEIVED TIME DEC. 15. 5:01PM
To: 4.1113d6-eJ.4-4e41-9418-J46.591 From: zachcoughlln 11-15-11 4:04pm p. J of J
•) •
attorney such as yourself via email? What do you have against email?
It is economical for those of use who don't have such public largesse to
work with. Here is service of the Motion for a New Trial, Set Aside,
Vacate, etc., etc:
h ttps:!/skydrive live co mired ir.aspx? cid =43084638 f32f5 f28&resid =43084638 F32 FS F28! 1031&pa rid = roo t
. .

Zach Coughlin, Esq.
Reno, NV 8 9501
tel: 775338 8118
fax: 949667 7402
*k Notice** This message and accompanying documents are covered by the electroruc Communications Privacy
Act, 18 U S.c. §§ 2510-2521, and may contain canfidentialmfonnatlOn intended for the speclfied mdividual (s)
only. If you are not the intended reciplent or an agent responsible for deliveri ng it to the intended recipient, you are
hereby notified that you have received this document m error and that any review, dlsseminal1on, copying, or the
taking of any action based on the contents of this information is strictly prohibIted. This message is confidential,
intended only for the named recipient(s) and may contain information that is privileged, attorney
work
Hotmail Print Message Page 1 of 2
product or exempt from disclosure under applicable law. If you are not the intended recipient(s),
you are
notified that any disclosure, copying, distribution ar any action taken or omitted to be taken in
reliance on
the contents of this information is prohibited and may be unlawful. If you receive this message in
error, or
are not the named recipient(s), please notify the sender, delete this e-mail from your computer,
and
destroy any copies in any form immediately. Receipt by anyone other than the named redpient(s)
is not a
Sincerely,
Zach Coughlin, Esq.
3/3
EXHIBIT B-3351
RECEIVED TlME DEC. 15. 5:01PM
.) •
1 CERTIFICATE OF MAILING
2 Pursuant to NRCP 5(b), I certify I am an employee of the Reno City Attorney's office,
3 and on this date, I placed a copy of the foregoing OPPOSITION TO MOTION FOR NEW
4 TRIAL in a sealed envelope placed for collection and mailing in the United States Mail at Reno,
5 Nevada, postage prepaid, following ordinary business practices addressed to:
6 Zachary Barker Coughlin, Esq.

817 N. Virginia St., #2
7 Reno, Nevada 89501
8 DATED this � day of December, 2011.
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FILED
Electronically
01-05-2012:05:38:01 PM
Joey Orduna Hastings
Clerk of the Court
Transaction # 2683654
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****** IMPORTANT NOTICE - READ THIS INFORMATION *****
PROOF OF SERVICE OF ELECTRONIC FILING
A filing has been submitted to the court RE: CR11-2064

Judge: STEVEN ELLIOTT
Official File Stamp: 01-05-2012:17:38:01

Clerk Accepted: 01-05-2012:17:38:31
Court: Second Judicial District Court - State of Nevada
Case Title: ZACH COUGHLIN VS. CITY OF RENO (D10)
Document(s) Submitted: Ord for Briefing Schedule
Filed By: Heidi Howden
You may review this filing by clicking on the
following link to take you to your cases.
This notice was automatically generated by the courts auto-notification system.
If service is not required for this document (e.g., Minutes), please disregard the below language.
The following people were served electronically:
PAMELA ROBERTS, ESQ. for CITY OF RENO
The following people have not been served electronically and must be served by traditional
means (see Nevada electronic filing rules):
ZACHARY COUGHLIN
356
FILED
Electronically
01-10-2012:01:29:13 AM
1 Document Code: Clerk of the Court
Zach Coughlin, Esq. Transaction # 2690019
3
1422 E. 9th St. #2
Reno, NV 89512
4 Tele: 775-338-8118
5 Attorney for Appellant
6
IN THE SECOND JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA
7
8
9
ZACH COUGHLIN; ) CASE NO: CR11-2064
Appellant, )
10 ) DEPT. NO: 10
) CR11-2064 - ZACH COUGHLIN VS. CITY
11 vs. ) OF RENO (D10)
)
12
)
13 CITY OF RENO )
)
14 Respondents. ) NOTICE OF APPEARANCE AS
) ATTORNEY OF RECORD ON BEHALF
15
) OF ZACHARY COUGHLIN
16 )
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19 NOTICE OF APPEARANCE ON BEHALF OF ZACHARY COUGHLIN
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This undersigned hereby files this Notice of Appearance to appear as and be added for all purposes,
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22 including all E-Flex Notifications and access, as Attorney of Record for Appellant, Zach Coughlin.
23 Dated this January 10th, 2012

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25
/s/ Zach Coughlin_________________
26 Zach Coughlin, Esq.
NV Bar No. 9473
27
1422 E. 9th St. #2
28 Reno, NV 89512
- 1
NOTICE OF APPEARANCE AS ATTORNEY OF RECORD ON BEHALF OF ZACHARY
COUGHLIN
357
1 Tele: 775-338-8118
Fax: 949-667-7402
2 ZachCoughlin@hotmail.com
3
Attorney for Appellant
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COUGHLIN
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1
2
3 Also, this document does not contain any social security number or other inappropriate material
4 pursuant to NRS 239B.030.

5 DATED this January 10th, 2012
6

9
Zach Coughlin
Appellant
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COUGHLIN
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1 PROOF OF SERVICE
3
4 On January 10th, 2012, I, Mr. Zach Coughlin served the foregoing NOTICE OF
APPEARANCE AS ATTORNEY OF RECORD by faxing and serving upon registered efilers and
5 depositing a true and correct copy in the US Mail addressed to:
6
PAM ROBERTS, ESQ
7 Reno City Attorney's Office - Criminal Divison
P.O. Box 1900 Reno , NV 89505
8 Phone Number: 7753342050
Fax number: 7753342420
9
Attorney for Respondent, City of Reno
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12
13 -----------------------------
Zach Coughlin
14 AGENT OF APPELLANT
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COUGHLIN
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Clerk Accepted: 01-10-2012:09:01:34
Document(s) Submitted: Notice of Appearance
Filed By: ZACHARY COUGHLIN, ESQ.
ZACHARY COUGHLIN, ESQ. for ZACHARY
COUGHLIN
361
FILED
Electronically
01-19-2012:01:37:52 PM
Clerk of the Court
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Clerk Accepted: 01-19-2012:14:45:34
Document(s) Submitted: Mtn to Dismiss
Filed By: PAMELA ROBERTS, ESQ.
ZACHARY COUGHLIN, ESQ. for ZACH
COUGHLIN
366
FILED
Electronically
01-30-2012:12:18:00 PM
1 Document Code: 2645 Clerk of the Court
3
1422 E. 9th St. #2
Reno, NV 89512
4 Tele: 775-338-8118
Fax: 949-667-7402
6
7 IN THE SECOND JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA

9
ZACH COUGHLIN; )
10 )
Appellant, )
11 )
vs. ) CASE NO: CR11-2064
12
)
13 CITY OF RENO ) DEPT. NO: 10
)
14 Respondents. )
)
15
16
17 NOTICE TO SET HEARING

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COMES NOW, Appellant Zach Coughlin, by and through his attorney, Zachary Barker
19
Coughlin, Esq , and files this Notice to Set Hearing based upon:
20
"NRS 189.065 Dismissal for failure to set or reset appeal for hearing.
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22 1. An appeal must be dismissed by the district court unless perfected by application of the defendant, within 60 days
after the appeal is filed in the justice court, by having it set for hearing.
23 2. If an appeal has been set for hearing and the hearing is vacated at the request of the appellant, the appeal must be
dismissed unless application is made by the appellant to reset the hearing within 60 days after the date on which the
24 hearing was vacated.
25 The undersigned hereby applies for any such hearing that is required.
26 Rule 19. Appeals from municipal and justice courts.

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1. All appeals from the municipal or justice courts in criminal cases shall be set for trial or hearing within 60 days of
28 the date of application for setting. A setting beyond 60 days may be made only if approved in writing by the trial judge or
- 1
NOTICE TO SET HEARING
367
1 the chief judge. If a trial setting is continued by order of the court, the case shall be reset within 60 days of the date of the
order for continuance.
2 2. If multiple settings for appeal trials in any one court department exceed the capacity of that department, settings
shall be made in the designated department scheduled to handle the overflow. If that court’s calendar becomes full,
3 assignment shall be made to any other available department.
4 3. Appeals in criminal cases shall be set for trial on Thursdays and Fridays, unless the trial judge
5 or the chief judge grants permission to make such settings on other judicial days."
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PLEASE NOTE ON THURSDAY, FEBRUARY 2ND AT 10:30 A.M. the undersigned will appear
8
9
before Department 10, either in person or telephonically to Set a Hearing for this matter in
10 compliance with the above authority.

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12

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Dated this January 30th, 2012
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/s/ Zach Coughlin_________________
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Zach Coughlin, Esq.
19 NV Bar No. 9473
1422 E. 9th St. #2
20 Reno, NV 89512
Tele: 775-338-8118
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Fax: 949-667-7402
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368
1 PROOF OF SERVICE
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4 On January 30th, 2012, I, Mr. Zach Coughlin served the foregoing document by faxing and
serving upon registered efilers and depositing a true and correct copy in the US Mail addressed to:
5
6
PAM ROBERTS, ESQ
JOHN KADLIC, ESQ
7 Reno City Attorney's Office - Criminal Division
P.O. Box 1900 Reno , NV 89505
9 Fax number: 7753342420
10
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13 -----------------------------
Zach Coughlin
14
AGENT OF APPELLANT
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369


Clerk Accepted: 01-30-2012:15:37:49
Document(s) Submitted: Notice to Set
COUGHLIN
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FILED
Electronically
01-30-2012:04:48:12 PM
3
1422 E. 9th St. #2
Reno, NV 89512
4 Tele: 775-338-8118
Fax: 949-667-7402
6

9
ZACH COUGHLIN; )
10 )
Appellant, )
11 )
12
)
)
14 Respondents. )
)
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17 OPPOSITION TO MOTION TO DISMISS APPEAL

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Coughlin, Esq , and offers his Opposition to Motion to Dismiss Appeal. This Opposition is based
20
upon the attached Points and Authorities and the pleadings and papers on file in this case (though
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22 the Record on Appeal is deficient in that much of it is in the form of an illegible "four pages per
23 page" version of what was provided the Reno Municipal Court, whereas a "one page per page"
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version of those papers and pleadings were provided to the Reno Municipal Court and in a manner
25
expressly authorized by the Reno Municipal Court.
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OPPOSITION TO MOTION TO DISMISS APPEAL
371
1 I. STATEMENT OF THE CASE
2 On November 30, 2011, the Reno Municipal Court held a Trial of Appellant for the charge of
3
Petit Larceny (RMC §8.10.040). See Certified Copy of Docket, filed December 23, 2011. Though
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Pam Roberts had agreed in writing to a continuance previous thereto, she decided to change her
5
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mind on the date of the Trial, and Judge Howard refused one anyway. In fact, Judge Howard
7 thought it was such an urgent matter of public importance to get this petit larceny charge of a
8 "chocolate bar and some cough drops" done that he get literally an entire Department of the Reno
9
Municipal Court working until 9 pm at night on November 30th, 2011, with everybody collecting
10
overtime, all courtesy of the public fisc.
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Appellant received a fine in the amount of$360.00 and 24 hours of community service, but
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13 then Judge Howard realized he was mistaken in his belief that Appellant had failed to appear for the
14 originally scheduled November 14th, 2011 Trial Date. So Judge Howard excised his earlier
15
requirement that Appellant before 24 hours of Washoe County Sheriff work program community
16
service, with no extensions, by December 18ht, 2011, despite the Appellant being indisposed
17
serving three days in Washoe County Jail immediately following the Trial in this matter pursuant to
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19 a finding Summary Contempt Order announced by Judge Howard at the conclusion of the
20 November 30th, 2011 Trial in this matter, only to return to the full time practice of law upon the
21
conclusion of the three day sentence (A Motion for Stay requested by the Appellant while being
22
handcuffed and arguing that his client's would be unduly prejudiced by such a Summary Contempt
23
finding) was curtly dismissed by Judge Howard one sentence into arguing for it. See Certified Copy
24
25 of Docket. On December 13, 2011 Appellant filed a Notice of Appeal in this matter. See Certified
26 Copy of Docket. At the conclusion of the Trial in this matter, and on the record and part of the
27
official audio recording of this matter, Judge Howard announced to the undersigned that he was
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372
1 giving the undersigned an additional three days beyond that normally afforded litigants, to file a
2 Notice of Appeal on account of Judge Howard's summarily sentencing the undersigned attorney to
3
three days in jail for "contempt committed in the presence of the Court".
4
It is very, very odd that the "Certified Docket" and the "Record on Appeal" do not seem to
5
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verify the filing of many of the papers and pleadings from the undersigned in Exhibit 1. This
7 manner of filing papers and pleadings was expressly authorized by RMC Filing Office Supervisor
8 Donna Ballard.
9
Another thing that is curious and clearly very, very wrong is that the "Judgment and Order of
10
the Court" that was allegedly file stamped on Novemer 30th, 2011 (yet lacks a clerk's handwritten
11
intials in the blank calling for as much) indicates that the undersigned pled "Guilty" to the charge.
12
13 Now, how a 5 hour Trial could have taken place when a "guilty" plea was entered (and, again, the
14 undersigned did not ever pled guilty in this case, far from it) is not clear, but a lot of things aren't
15
clear. How could the incredibly implausible and shaky testimony and evidence put on here for the
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accused theft of about $10 of edibles (in a County that has had about 15% unemployment for about
17
3 years now, with an accused that has received no foodstamps, Section 8 housing, medi-caid, no
18
19 nothing....no to mention that the evidence strongly shows that there was no theft in this matter). So,
20 what of the "guilty" plea mentioned? Does that invoke NRS 177.015(4)? Or does it just show the
21
sloppy and or prejudicial manner in which Veronica Lopez et al do their duties in Department 4?
22
NRS 177.015(4): "Appeals to district court and Supreme Court. The party aggrieved in a criminal
23
action may appeal only as follows:. 4. Except as otherwise provided in subsection 3 of NRS
24
25 174.035, the defendant in a criminal case shall not appeal a final judgment or verdict resulting from
26 a plea of guilty, guilty but mentally ill or nolo contendere that the defendant entered into voluntarily
27
and with a full understanding of the nature of the charge and the consequences of the plea, unless the
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373
1 appeal is based upon reasonable constitutional, jurisdictional or other grounds that challenge the
2 legality of the proceedings. The Supreme Court may establish procedures to require the defendant to
3
make a preliminary showing of the propriety of the appeal. " How is it that this charge, alleging the
4
consuming of a "chocalate bar and some cough drops" results in a custodial arrest over one day, a
5
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$360 fine plus another $40 for "court processing charges", in addition to 24 hours of Sheriff's "work
7 crew" community service, to be completed "with no extensions" in a matter of 15 days by one who
8 is engaged in the full time busy practice of law, immediately after that same attorney finishes
9
serving three days in jail (no Stay granted, no tier time in jail, no phone calls to protect client's
10
affairs) for a Summary Contempt Order in a case where the indigent accused was denied his Sixth
11
Amendment Right To Counsel, and any continuance, not even one, even where a wrongful eviction
12
13 with all sorts of attendant procedural and substantive errors in REV2011-001708 unduly prejudiced
14 the accused's ability to put on a defense, particularly where materials essential to such a defense
15
where being wrongfully withheld by the opposing counsel in the eviction matter (whom was also
16
withholding another attorney's client files and that attorney's drivers license and whom the
17
undersigned can't find a single attorney in town who has a single good thing to say about that
18
19 attorney, his name being Richard G. Hill, Esq.)?
20
II. STATEMENT OF THE FACTS
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22 Please see EXHIBIT 4: December 12th, 2011 emailed filing (as authorized by the RMC in
23 lieu of faxing) to the RMC's renomunirecords@reno.gov that should, but does not appear
24
appropriately in the record on appeal, containing just the email cover sheets proving the attached
25
pdf's were received by the RMC and therefore the contents thereof should be appropriately printed,
26
provided, and filed by the RMC to the District Court, rather than the illegible "four pages per page"
27
28 style the RMC has put in the Record on Appeal. Further, please see EXHIBIT 2:
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374
1 DECLARATION OF ZACHARY B. COUGHLIN, ESQ. for a somewhat thorough accounting of
2 the relevant facts here. Further, it seems a "tolling motion" was timely filed her, so in the interest of
3
judicial economy its is likely necessary to figure out whether the Notice of Appeal and this Request
4
to Set a Hearing with the 60 days from the filing of the Notice of Appeal here is appropriate or if it
5
6
would be for naught. Further, Judge Howard's signature on various papers and Orders appears to be
7 a "rubber stamp" mold of his signature, which is, perhaps, not permissible. Additionally, on the "not
8 on pleading paper" " . Further, the Summary Contempt Order completely lacks an Proof of
9
Service, indeed, there is no record of any service of this Summary Contempt Order in the Record on
10
Appeal. Another thing that is not only interesting, but indicative of the ad hoc, slapdash manner in
11
which convictions are handed out and trials are conducted in Judge Howard's court room. Such
12
13 convictions can require an attorney such as the undersigned to comply with SCR 111. Or entail
14 filing an appeal like this one, which will not only likely cost the City of Reno quite a bit of money
15
during particularly down economic times, but which have even more far reaching effects upon a
16
number of people. The "Judgment of Conviction and Court Order" (have fun figuring out if NRCP
17
59 is applicable to something with that title) does not have a Proof of Service, per se, but there is
18
19 something for a litigant to sign, usually with a bullying Marshal hulking over he or she in a
20 demeaning, authoritarian, and derisive tone....However, the Marshal who initialed (yet provided not
21
further identifying information) this section, writing in "REFUSED" and a time of 8:23 pm,
22
apparently filed to later adjust this "time of service" is you can call it that. Perhaps he or she should
23
have, considering that the "For The Record" software the RMC uses and provides litigants
24
25 purchasing the recording of the audio of a trial indicates that the "Judgment and Court Order" in this
26 matter was finally concluded at 8:46 p.m. a full twenty three minutes AFTER the time the Marshal
27
wrote on the quasi-Proof of Service form of 8:23 p.m. (where the Marshal wrote REFUSED, which
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1 was a lie, it was not refused, and further, the handcuffed and manhandled undersigned was not really
2 in much of a position to prevent the five to six Marshals there from folding up such a document and
3
putting in the undersigned laptop bag or his pockets, or otherwise providing a copy of the document.
4
What the RMC means by "REFUSED" is not clear. Veronica Lopez, Judge Howard's menacing
5
6
"Judicial Assistant" sneered to the undersigned on the phone, when he called the following Monday
7 seeking a copy of any such documents that the undersigned "had his chance to get one and blew it"
8 and then Lopez proceeded to taunt the undersigned some more and hang up abruptly after lying that
9
she would fax copy of the "documents" supposedly refused on November 30th, 2011 to the
10
undersigned fax number as listed on the State Bar's website. The flagrant level of belligerence
11
demonstrated by some many of the personnel associated with the RMC, particularly Judge Howard's
12
13 Department, many of whom are "former prosecutors" or otherwise associated with a prosecutorial
14 incubation period really suggests a complete lack of oversight and accountability being applied to
15
the RMC by the judiciary, the public, and the powers that be. The November 30th, 2011 "Judgment
16
of Conviction and Court Order" (which appears to bare a rubber stamp mold of Judge Howard's
17
signature, which looks completely inauthentic, "rubber stampish", overly uniform, and identical
18
19 every time I have seen it anywhere) 8:33:11 pm on November 30th, 2011 in Judge Howard's court
20 room.
21
Further, the "interrogation room" video from Wal-Mart filed with the RMC on 12/13/11 and
22
the materials in EXHIBIT 5 (which includes Discovery produced by Reno City Attorney compared
23
to receipt of "purchased" items, both filed in legible form with the RMC, yet not included in legible
24
25 form in the Record on Appeal) NOTE: THIS IS THE RECEIPT FOR THE ITEMS THAT WERE
26 RUNG UP AND FOR WHICH MONEY WAS PAID. WAL-MART'S THOMAS FRONTINO
27
AND RSIC OFFICER CRAWFORD LIED WHEN THEY BOTH TESTIFIED THAT THEY
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1 VERIFIED THAT THE UPC FOR THE "COUGH DROPS" ON THE RECEIPT ON THE PAGE
2 ABOVE THIS ONE DID NOT APPEAR ON THE RECEIPT FOUND BELOW). HOWEVER,
3
CLEARLY THAT SAME UPC APPEARS ON BOTH RECEIPTS (THE UPC IS 0732211630093).
4
FRONTINO EVEN TRIED TO TESTIFY THAT HE WAS ABLE TO DISCERN FROM
5
6
APPROXIMATELY 50 FEET AWAY THAT HE COULD TELL EXACTLY WHAT ITEMS
7 AND WHAT UPC'S WERE BEING RUNG UP AT THE REGISTER AND THAT HE WAS
8 ABLE TO VERIFY THAT THE UPC'S FOR THE COUGH DROPS ON THE "STOLEN"
9
RECEIPT" WERE NOT FOUND ON THE "PURCHASED" RECEIPT. HOWEVER, CLEARLY,
10
FRONTINO WAS WRONG OR LYING, OR BOTH.
11
LEGAL ARGUMENT
12
13 So, here is how much Pam Roberts, Esq. and John Kadlic, Esq. think of this Court, our
14 judicial system, NRCP 11, rules governing prosecutorial misconduct WDCR 10, DCR 12, WDCR
15
12(1), Rules of Professional Conduct related to refraining from suborning perjury, etc., etc. Pam
16
Roberts, Esq.'s Motion to Dismiss consisted of just thus:
17
" MOTION TO DISMISS APPEAL
18
COMES NOW Respondent CITY OF RENO, by and through, Pamela G.
19 Roberts, Deputy City Attorney, and files its Motion to Dismiss Appeal as follows:
This Motion is based upon the pleadings and documents on file herein, and the
20 following Legal Argument.
LEGAL ARGUMENT
21
On November 30, 2011, the Reno Municipal Court convicted Appellant of
22 Petit Larceny (RMC §8.10.040). See Certified Copy of Docket, filed December
23, 2011. Appellant received a fine in the amount of$360.00. See Certified Copy
23 of Docket. On December 13, 2011 Appellant filed a Notice of Appeal in this
matter. See Certified Copy of Docket. Pursuant to NRS 1 89.010, the Appellant
24
had 10 days from November 30, 2011 to file his Notice of Appeal. This 10 day
25 rule applies to the Reno Municipal Court. See Root v. City of Las Vegas, 84 Nev
258, 439 P2d 219 (1968). There are no exceptions.
26 CONCLUSION
Based upon the foregoing, Respondent respectfully requests that this
27
Honorable Court enter an Order dismissing this appeal. DATED this 19th day of
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1 January, 2012, JOHN J. KADLIC Reno City Attorney By: PAMELA G.
ROBERTS Deputy City Attorney"
2
3
Now, for the $112,000 per year in compensation that Deputy Reno City Attorney Pam
4
Roberts has averaged over the last several years, one might be forgiven for expecting that she could
5
6
provide some citation to the NRCP that forms the basis for her Motion to Dismiss Appeal. (See,
7 EXHIBIT 3: Salary information for the years 2009 and 2010 for Deputy Reno City Attorney Pam
8 Roberts, Esq. from www.TransparentNevada.com). However, Roberts failed to cite to NRCP 12(b)
9
at all, much less specify which section of NRCP 12(b) she may be arguing for a Dismissal under.
10
So, perhaps, Roberts should be on trial for theft, as her Motion certainly does not seem to suggest an
11
honest day's work for an honest day's pay. As such, Respondent's Motion must fail. Certainly, the
12
13 undersigned's Motion's have failed in other cases before this Court where he has, allegedly, failed to
14 cite to a specific procedural rule supporting the relief he requested. That is, unless this Court prefers
15
to hold pro se litigants who are living at the poverty line to a much higher standard than it holds
16
government attorneys who are compensated extremely well to prosecute misdemeanor crimes and
17
assisted by several full time staff members and a generous equipment and expense account.
18
19 Regardless, Roberts Motion to Dismiss fails to comply with WDCR Rule 12. : "Motions; points and
20 authorities and decisions. 1. Except as provided in Rule 1, all motions shall be accompanied by
21
points and authorities." Roberts motion contains no authority to support a number of aspects of
22
her argument.
23
Further, the Proof of Service on Robert's motion is addressed to an address for the
24
25 undersigned that Roberts should have known was no longer current given the January 10, 2012
26 Notice of Appearance the undersigned filed in this matter with his current 1422 E. 9th St. #2, 89512
27
address. As such, Roberts motion is improperly notice and should fail. Further, even if opposing
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1 counsel Roberts wishes to argue the Motion to Dismiss may have been served electronically via E-
2 Flex (something she has not established or offered any proof of), the Proof of Service she attached to
3
her Motion to Dismiss does not indicated her Motion was so served electronically. And its this kind
4
of sloppy, careless, inattention to detail that permeated throughout Robert's practice at Trial in this
5
6
matter, wherein she suborned the perjury of multiple witnesses for her employer, the City of Reno,
7 despite the fact that Roberts herself propounded to the undersigned video evidence which proves the
8 testimony she put on the stand amounted to suborning perjury.

9
Please see the undersigned's Declaration, under penalty of perjury attached hereto, concerning
10
the following excerpt from the end of the audio record of the November 30th, 2011 Trial in RMC 11
11
CR 22176, which represents a completely true and accurate transcription (made from the CD of the
12
13 Trial that the undersigned purchased from the RMC and taken from the file named:
14 "[MCFTRB]_20111130-2033_01ccaf9f451ed090" ; this audio excerpt and perhaps the entire audio

15
record will likely be provided to the District Court in the form of an attachment to a Supplemental to
16
a motion in compliance with the indications given by Appeals Clerk Lori Matheus and Clerk of
17
Court Orduna Hastings) of what was said in open court, on the record, beginning at 8:33:11 pm on
18
19 November 30th, 2011 in Judge Howard's court room:
20
21
"JH: alright we are back on the record in regard to City v. Zachary Coughlin.
22 I was admittedly remiss in not advising Mr. Coughlin of his right to appeal.
We do want to take care of that now on the record. Mr. Coughlin, you have
23 the right to appeal the decision of this Court. You can do so by filing a Notice
of Appeal. Customarily, it's 10 days and thats, uh, I'm sure you are fully
24
aware of that...What I am going to do is grant an extension to that statute in
25 light of the fact that you will not be released from custody until December
3rd, so your 10 days will run effective December 3rd at 8 pm, so you will
26 have 10 days from that date to file a Notice of Appeal with this Court, now
once you file your Notice of Appeal there are several things that you will have
27
to do, principal among those is to obtain a copy of the transcript at your
28 expense. Once the transcript has been forwarded to the District Court, there is
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1 no Trial de novo, you are probably aware that the District Court judge will
review the four corners of the transcript to determine, one, whether this court
2 has made any legal errors that would justify a reversal of this matter or
3
whether there is sufficient evidence within the transcript to justify the finding
of guilt that I have made here today. Is there any questions at all with regard
4 to the appeal process?
5 ZC: The availability of a Stay, that I guess would go more towards the
6
finding of Contempt? Um, when you say "appeal process" are you referring
to...?
7
JH: The filing of appeal in regard to the petit theft.
8
9
ZC: Not in regard to the Contempt?
10 JH: No, thats a summary proceeding and we are going to go forward with
that. One thing that I will say in regard to the petit theft Trial and subsequent
11 sentencing, however, its my recollection, improperly, that you had failed to
appear at the previous proceeding, and that's not correct, uh, there was another
12
reason as to why we were unable to proceed, so I am going to delete the 24
13 hours of community service, the fine of $360 will stand. Alright, any other
questions involving the Appeal process?
14
ZC: Yes, to the extent my law practice's clients, that their cases will be
15
unduly prejudiced by your incarcerating me right now...
16 JH: I am standing by that and I wish you would have thought about that after
each admonishment that I gave you during the Trial.
17
ZC: You are saddened by that.
18
19 JH: We are in recess. " (commotion of Marshals can be heard and the audio
recording of the record of the Trial ends).
20
21
You know what my favorite part of this is? That "file stamp" in the Record on Appeal for that
22
document, whatever it is, kind of a court printout thing in the RMC, with a filed on date stamp of
23
11/30/11...why, I guess they are calling that the "Judgment of Conviction and Order"...its not on
24
25 pleading paper, hmmmn...know what else? Its just about the only document in the Record on
26 Appeal with a file stamp that doesn't have a RMC Deputy Clerk's handwritten initialing on it. Why,
27
oh why isn't there a Deputy Clerk's initials on that particular file stamping? Why is that? Isn't that
28
- 10
380
1 document and when it was "rendered" under RMCR 9 the whole point of Pam Robert's Motion to
2 Dismiss the Appeal? (RMCR Rule 9: "Appeals to District Court Except as otherwise provided in
3
NRS 177.015 a defendant in a criminal action tried before a Municipal Court Judge may appeal
4
from the final judgment therein to the Second Judicial District Court, at any time within 10 days
5
6
from the date that judgment is rendered.")
7 Assuming the RMC doesn't have to closely adhere to the RJC practices and procedures of the
8 Justice Courts-and it must under NRS 5.073 Conformity of practice and proceedings to those of
9
justice courts ...), but regardless, Pam Roberts' motion wastes everybody's time here, as NRCP 6
10
holds that one doesn't count the day of the event in computing and that one gets 3 additional days for
11
where no personally service was effectuated, and clearly the RMC's conduct in showing papers in a
12
13 man's face while he is handcuffed, then snatching and dashing off with the appears a huff...refusing
14 to even let the accused know what it is they want signed and or to allow to review said papers is
15
very telling with respect to the conception of some in the RMC of the "fundamentals of due
16
process". So , even if one measured from an oral pronouncement from the bench on 11/30/11
17
(which is debatable, but Roberts offers no legal research into what a judgment being rendered or
18
19 what rendition of the judgment actually entails or means? Does it mean reduced to writing? Does it
20 mean orally pronounced? Doe is mean entered into a docket or imply some requirement for Notice
21
of Entry of the Order or Judgment, with a file stamp, proof of service, etc.? any time within 10 days
22
from the time of the rendition of the judgment Also in the Record on Appeal (ROA) the 11/30/11
23
Summary Contempt Order lacks any sort of Proof of Service, so...has there not been a final
24
25 appealable Order in this matter yet? Do I not have to be appropriately served that Contempt Order?
26 Where is the proof of such Further, the "certified docket" does not seem to contain the filing emailed
27
to the address RMC's D. Ballard approved the use of on 12/12/11.
28
- 11
381
1 NRS 189.010 Appeal must be taken within 10 days. Except as otherwise provided in NRS
2 177.015, a defendant in a criminal action tried before a justice of the peace may appeal from the
3
final judgment therein to the district court of the county where the court of the justice of the peace
4
is held, at any time within 10 days from the time of the rendition of the judgment.
5
6
Quite arguably NRS 189.010 is inapplicable the the RMC as the RMC does not have justices
7 of the peace.
8 NRS 189.065 Dismissal for failure to set or reset appeal for hearing.
9
1. An appeal must be dismissed by the district court unless perfected by application of the
10 defendant, within 60 days after the appeal is filed in the justice court, by having it set for hearing.
11 2. If an appeal has been set for hearing and the hearing is vacated at the request of the appellant,
the appeal must be dismissed unless application is made by the appellant to reset the hearing within
12
60 days after the date on which the hearing was vacated.
14
Rule 19. Appeals from municipal and justice courts.
15
1. All appeals from the municipal or justice courts in criminal cases shall be set for trial or
16
hearing within 60 days of the date of application for setting. A setting beyond 60 days may be made
17 only if approved in writing by the trial judge or the chief judge. If a trial setting is continued by order
of the court, the case shall be reset within 60 days of the date of the order for continuance.
18
2. If multiple settings for appeal trials in any one court department exceed the capacity of that
19 department, settings shall be made in the designated department scheduled to handle the overflow. If
that court’s calendar becomes full, assignment shall be made to any other available department.
20
3. Appeals in criminal cases shall be set for trial on Thursdays and Fridays, unless the trial judge
21 or the chief judge grants permission to make such settings on other judicial days.
22 A post-judgment tolling motion was timely filed here, arguably on December 12th, 2011,
23 though, if not, then certainly on December 13th, 2011. Please see Exhibit 4 attached hereto. As
24
such, the time to appeal from the final judgment is “tolled” until after the tolling motions are
25
resolved. NRAP 4(a)(4) lists the only motions that are tolling: 1. A motion for judgment as a matter
26
of law under NRCP 50(b); 2. A motion under NRCP 52(b) to amend or make additional findings of
27
28 fact; 3. A motion under NRCP 59 to alter or amend the judgment; and 4. A motion for a new
- 12
382
1 trial under NRCP 59. According to the stated rules, these motions must be filed within 10 days of
2 service of the notice of entry of judgment to effectively toll the time to appeal the final judgment. The
3
Supreme Court has clarified that the counting for the 10 days does not include intervening Saturdays,
4
Sundays, or non-judicial days according to NRCP 6(a). Winston Prods. Co., Inc. v. DeBoer, 122
5
6
Nev. 517, 134 P.3d 726 (2006). Any additional time added for service is counted by calendar days
7 after the initial 10 days. Id. In addition to tolling the time to file a notice of appeal, a tolling motion
8 also tolls the time to appeal from special orders made after final judgment, such as orders awarding
9
attorney fees and costs. Id. In the event that your tolling motion is not filed within the allowed 10
10
days, you should still file the motion with the understanding that the time to appeal the final judgment
11
is not tolled. If the District Court is inclined to grant your motion after a notice of appeal has been
12
13 filed, the District Court does not technically have jurisdiction to enter an order dealing with subject
14 matter that is pending on appeal, but the District Court may recommend its inclination to enter such
15
an order to the Supreme Court. Mack-Manley v. Mack, 122 Nev. 75, 138 P.3d 525 (2006). The
16
Supreme Court then has the authority to remand the matter to the District Court to enter the order
17
according to the District Court's inclinations. Id. So, given that the undersigned has a series of
18
19 legitimate legal arguments to somehow change the judgment, the Appellant hereby requests, under
20 District Court Rule 13(7), permission to allow this litigants to file a motion for reconsideration upon
21
leave of court. Other local rules, such as Eighth Judicial District Court Rule 2.24(b) and Second
22
Judicial District Court Rule 12(8), require that a motion for reconsideration or rehearing be filed
23
within 10 days of service of notice of entry of judgment. Although an order granting or denying a
24
25 motion for reconsideration is not itself appealable, the Supreme Court will consider arguments raised
26 in the motion for reconsideration so long as the District Court considers your motion on the merits,
27
28
- 13
383
1 your notice of appeal is filed after the order disposing of the motion and the motion and order are
2 included in the record on appeal. Arnold v. Kip, 168 P.3d 1050 (Nev. 2007).
3
TIMING TO FILE A NOTICE OF APPEAL
4
The notice of appeal is a basic document that does nothing more than put the superior Court on
5
6
notice of which Municipal Court orders you believe were decided incorrectly. By way of analogy
7 to the instant scenario, NRAP 4(a)(1) requires that a notice of appeal be filed in the District Court
8 within 30 days after ser-vice of notice of entry of the order from which an appeal is taken. If a
9
tolling motion has been timely filed, NRAP 4(a)(4) allows the notice of appeal to be filed within 30
10
days after service of notice of entry of the order disposing of the final tolling motion. One's appeal
11
to the Supreme Court must be taken from an appealable order. NRAP 3A(b) lists many of the
12
13 orders that can be appealed. If one has not properly perfected one's appeal, occasionally the
14 jurisdictional defect can be corrected during the pendency of the appeal, depending on the type of
15
jurisdictional defect. Sustainable Growth Initiative Comm. v. Jumpers, LLC, 122 Nev. 53, 128
16
P.3d 452 (2006).
17
udgment is not made final by a mere written minute or an oral pronouncement by a court or
18
19 judge without the preparation and filing of a journal entry. Euclid v. Muller, 134 Ohio App. 3d 737,
20 732 N.E.2d 410 (8th Dist. Cuyahoga County 1999). In Magee v Lothrop (1939) 60 Nev 202, 96
21
P2d 201, 106 P2d 751, it was stated that the law of Nevada is settled that the period of time for
22
taking an appeal runs from the rendition of the decision of the court, not from the time of the filing
23
of the formal findings and formal judgment. The rule stated above was applied in Nelson v Paul
24
25 (1951) 68 Nev 365, 233 P2d 857, in which the trial judge first signed a document entitled "Opinion
26 And Orders On Demurrer And Motions To Strike," which, after an extensive discussion of the legal
27
principles involved, provided in part as follows: "For the reasons given, it is therefore ordered, that
28
- 14
384
1 the defendants Joe Anacabe and Fabiana Anacabe, his wife, be dismissed and stricken as parties
2 defendant herein." Subsequently a document entitled "Judgment" was signed and filed by the trial
3
judge. That document stated: "The demurrers of the defendants Joe Anacabe and Fabiana Anacabe,
4
his wife, having been sustained by order duly made on the 3rd day of July, 1950, and said
5
6
defendants having been dismissed and stricken as parties defendant herein, without leave to amend
7 as to said defendants; now, on motion of said defendants Joe Anacabe and Fabiana Anacabe, his
8 wife, It is ordered and adjudged that the complaint herein be, and the same is hereby, dismissed and
9
that said defendants have and recover of the plaintiff above-named their costs, taxed at $2.50."
10
Appeals taken within 6 months from the filing of the document entitled "Judgment" but more than
11
6 months after the filing of the document entitled "Opinion and Orders, etc.," were dismissed, the
12
13 court saying: "By the order of the trial court the rights of the Anacabes were fully determined. No
14 further judicial determination remained to be made. The fact that the 'Judgment' specified more
15
clearly than did the order the action taken by the court upon the demurrers does not constitute the
16
'Judgment' an exercise of further judicial determination in that respect. By its recitals it purports to
17
relate what had already been accomplished by the order and does not purport to take new and
18
19 further action. That document, then, was merely a more formal statement of the judgment as it had
20 already been rendered." An instrument entitled "Decision and Opinion," which concluded that the
21
plaintiffs were entitled to judgment against the defendants in a specified sum of money and directed
22
counsel for the plaintiffs to prepare findings and facts and conclusions of law in conformity with
23
this opinion, and not the findings and formal judgment subsequently filed, was held in Lind v
24
25 Raynor (1952) 69 Nev 164, 243 P2d 783, to constitute the judgment rendition of which started the
26 time for appeal running, and the appeal, having been filed more than 6 months after the filing of the
27
"Decision and Opinion," was consequently dismissed. The court relied on the wellestablished
28
- 15
385
1 Nevada rule that time for appeal from the judgment commences to run from the pronouncement by
2 the court of its determination of the matter, which constitutes a rendition of the judgment, and not
3
from the date of the filing of the formal findings of fact, conclusions of law, and judgment. The
4
Nevada rule under which the time for taking an appeal runs from the rendition of the court's
5
6
decision, and not from the time of the subsequent filing of the formal findings and formal
7 judgment, was held in Coleman v Moore (1925) 49 Nev 139, 241 P 217, to be applicable in a
8 situation in which a judge, after rendering a judgment, died and his successor signed the formal
9
judgment. A statute providing that in case of the death of a district judge after rendition of a
10
decision, the succeeding judge should make an examination of the decision, and sign and settle the
11
findings, and cause judgment to be entered, was held not to affect the time in which an appeal
12
13 might be taken after the rendition of judgment, but merely to provide how a succeeding judge
14 might perfect a judgment rendered by a predecessor since deceased. The following additional
15
authority is relevant to the issues discussed in this section: CUMULATIVE SUPPLEMENT Cases:
16
See Alaska Nat. Bank v. Linck, 559 P.2d 1049 (Alaska 1977), § 20. Appellate court properly
17
dismissed appeal on grounds of lack of jurisdiction where notice of appeal was filed prior to
18
19 issuance of formal order, and where there was no reason why appellant could not have amended
20 notice of appeal after becoming aware that former order disposing of case was actually filed; only
21
final judgments are appealable and filing notice of appeal is sole necessary jurisdictional step.
22
Stoermer v. Edgar, 104 Ill. 2d 287, 84 Ill. Dec. 440, 472 N.E.2d 400 (1984). Judgment that resolved
23
substantive issue before trial court was appealable, though trial court subsequently signed a
24
25 document denominated "judgment," stating its conclusions and reasoning for earlier order, that was
26 not itself an appealable judgment. V.A.M.S. § 511.020; V.A.M.R. 74.02. Martin v. Director of
27
Revenue, 44 S.W.3d 822 (Mo. Ct. App. S.D. 2001). Appeal brought more than 30 days after order
28
- 16
386
1 was untimely, notwithstanding that it was brought within 30 days of entry of judgment, where order
2 appealed from (dismissing party on preliminary objections in nature of demurrer) was final
3
appealable order which need not be reduced to judgment. U.S. Nat. Bank in Johnstown v. Johnson,
4
506 Pa. 622, 487 A.2d 809 (1985). Appeal taken from oral decision of trial court would be treated
5
6
as if it had been timely filed after entry of subsequent formal judgment which had been entered
7 after case had been remanded to trial court, notwithstanding fact that plaintiff failed to appeal again
8 following entry of written judgment where litigation had been protracted, and it was clear from
9
record that trial court's oral decision was intended to be its final act regarding case. Beauvais v.
10
Notre Dame Hospital, 120 R.I. 271, 387 A.2d 689 (1978). Appeal based on trial court's rendering
11
of written "Reasons for Judgment" following granting of application for new trial was premature
12
13 where effect of granting new trial was to suspend previously rendered and signed judgment, and
14 where judgment following new trial had not been reduced to writing and signed by judge as
15
required by state statute. Ready v. Sun Oil Co., 315 So. 2d 840 (La. Ct. App. 1st Cir. 1975).
16
§ 125. Time of rendition or entry West's Key Number Digest West's Key Number Digest, Judgment
17
280, 281 A judgment record or docket should afford definite and reliable information as to the time
18
19 of the rendition of a judgment.[1] Sometimes a judgment is entered as of the date when it was
20 signed by the judge[2] or as of the date when the judgment was rendered.[3] [FN1] Herrington v.
21
Heidelberg, 244 Miss. 364, 141 So. 2d 717 (1962). [FN2] State ex rel. Harp v. Vanderburgh Circuit
22
Court, 227 Ind. 353, 85 N.E.2d 254, 11 A.L.R.2d 1108 (1949). [FN3] Mt. Vernon-Woodberry Mills
23
v. Union Springs Guano Co., 26 Ala. App. 136, 155 So. 710 (1934);46 Am. Jur. 2d Judgments §
24
25 125. As to determination of the time of entry, see § 108. As to the time for perfecting an appeal as
26 computed from the time of rendition or entry of judgment, see Am. Jur. 2d, Appellate Review §
27
292. Appeal of guilty plea 3 Root v. City of Las Vegas, 454 P.2d 894, 894+, 85 Nev. 326, 326+
28
- 17
387
1 (Nev. May 27, 1969) (NO. 5630) 4 Root v. City of Las Vegas, 439 P.2d 219, 219+, 84 Nev. 258,
2 258+ (Nev. Apr 03, 1968) (NO. 5288). Roberts cites to Root, as case not really applicable as it
3
relates to an entirely different situation than the case at bar. Root concerned the appeal of a guilty
4
plea, not a thoroughly objected to and conducted in a suspect style contested trial.NV ST 1 DIST
5
6
CT Rule 33; Rule 33. Appeals to District Court in criminal matters from Justice Court and
7 Municipal Court. Honestly, the approach taken by the First Judicial District Court may be a more
8 sound one: Rule 33. Appeals to District Court in criminal matters from Justice Court and Municipal
9
Court. 1. Pursuant to NRS 189.010 for appeals from proceedings in the Justice Court and pursuant
10
to NRS 266.595 and NRS 5.073 for appeals from proceedings in the Carson City Municipal Court,
11
a Notice of Appeal in a criminal action tried before a Justice of the Peace or the Municipal Court
12
13 Judge must be filed within 10 days from the entry of the judgment. 2. At the time of filing of the
14 Notice of Appeal, the appellant shall file a request with the Justice Court or Municipal Court that
15
proceedings be transcribed. 3. Pursuant to NRS 189.065 or NRS 5.073, the Justice Court or
16
Municipal Court shall transmit to the Clerk of the District Court the transcript of the case, all other
17
papers relating to the case and a certified copy of its docket of the case within 10 days after the
18
19 Notice of Appeal is filed. 4. Pursuant to NRS 189.065 or NRS 5.073, the appellant must perfect his
20 or her appeal by having the appeal set for hearing by the District Court within 60 days after the
21
Notice of Appeal is filed. 5. The appellant shall file his or her brief within 30 days after the matter
22
is set for hearing, provided the written transcript of the proceedings has been prepared and filed
23
with the District Court and provided to the parties. The respondent shall file his or her opposing
24
25 brief within 20 days thereafter, and any reply brief by the appellant shall be filed within 10 days
26 thereafter. But the WDCR has a rule on the matter too: Rule 19. Appeals from municipal and
27
justice courts. 1. All appeals from the municipal or justice courts in criminal cases shall be set for
28
- 18
388
1 trial or hearing within 60 days of the date of application for setting. A setting beyond 60 days may
2 be made only if approved in writing by the trial judge or the chief judge. If a trial setting is
3
continued by order of the court, the case shall be reset within 60 days of the date of the order for
4
continuance. 2. If multiple settings for appeal trials in any one court department exceed the capacity
5
6
of that department, settings shall be made in the designated department scheduled to handle the
7 overflow. If that court’s calendar becomes full, assignment shall be made to any other available
8 department. 3. Appeals in criminal cases shall be set for trial on Thursdays and Fridays, unless the
9
trial judge or the chief judge grants permission to make such settings on other judicial days. 4. In
10
civil appeals from the justice court, appellant shall file within 30 days after the filing of a notice of
11
appeal a written brief containing a statement of the errors committed in the justice court with
12
13 accompanying authorities which shall not exceed 5 pages. Within 20 days after the filing and
14 service of appellant’s brief, respondent shall file a written answering brief which shall not exceed 5
15
pages. Under statute providing that an appeal shall be dismissed unless perfected by defendant
16
within 60 days after appeal is filed in justice's court by having it set for trial, defendant need not
17
actually obtain trial setting within 60-day limit, but need only apply for trial setting within that
18
19 time; disapproving Plankinton v. District Court, 93 Nev. 643, 572 P.2d 525. N.R.S. 189.065.
20 Thompson v. First Judicial Dist. Court, Storey County, 1984, 683 P.2d 17, 100 Nev. 352. Under
21
municipal statutory charter provision that appeals to district court may be taken from any final
22
judgment of municipal court in same manner as in cases of appeal from justice court, and statute
23
relating to appeals from justice court and requiring party intending to appeal to file with justice and
24
25 to serve upon district attorney, a notice of appeal, party desiring to appeal from judgment of
26 municipal court sufficiently meets requirements when notice of appeal is filed with municipal judge
27
and is served upon city attorney who conducted proceedings in municipal court. St.1949, c. 132, §
28
- 19
389
1 29; N.C.L.1929, §§ 11310, 11313. State ex rel. Digby v. Eighth Judicial Dist. Court of State, in and
2 for Clark County, 1952, 244 P.2d 866, 69 Nev. 186.
3
933, 479 N.E.2d 698 (1985). Where defendant was tried and convicted, and court imposed
4
sentence and rendered judgment, but where clerk failed to enter judgment pursuant to rule, Court of
5
6
Appeals lacked appellate jurisdiction. State v. Lee, 562 S.W.2d 794 (Mo. Ct. App. 1978).Original
7 unsigned minute book entry of judgment was not appealable, since it did not meet statutory
8 requirement that "rendition" of judgment means that it be reduced to writing, signed and made a
9
matter of record, or filed. Egantoff v. Herring, 177 So. 2d 260 (Fla. Dist. Ct. App. 2d Dist. 1965).
10
Here, the undersigned, Coughlin, made numerous attemtps to see that the "Judgment and Court
11
Order" here was a matter of record, and the RMC filign office, all the way up to 12/13/11, indicated
12
13 it was not. properly dismissed. Cornelius v. Tubbesing, 576 S.W.2d 753 (Mo. Ct. App. S.D. 1979).
14 Appeal would be held in abeyance and cause remanded to trial court for rendition and entry of final
15
judgment where only indication of final judgment on transcript was docket entry, and where docket
16
entry was styled in singular although defendant had been charged with two counts of possession of
17
controlled substances. State v. Gonterman, 565 S.W.2d 800 (Mo. Ct. App. 1978).
18
19 Under Rev. Laws, § 7513, notice of appeal from a conviction and sentence in justice's court
20 upon both law and fact held sufficient. Jensen v. District Court of Seventh Judicial Dist., in and for
21
Esmeralda County, 1916, 161 P. 162, 40 Nev. 135.; Furthermore, jurisdiction cannot be conferred
22
upon an appellate court by the consent or stipulation of the parties or **1234 their counsel. Jasper
23
v. Jewkes, 50 Nev. 153, 254 P. 698 (1927); In Re Hanley's Estate, 23 Cal.2d 120, 142 P.2d 423
24
25 (1943). However, this authority does not apply here. This is not a stipulation of parties situation,
26 Judge Howard makes his Judement and Order fo the Court and he gets to decide when it runs from
27
and when the period to file a Notice of Appeal is measure from. He did so here, and in accordance
28
- 20
390
1 with the the filing of the Notice of Appeal in this matter is timely. NRS 189.030 provides that, ‘The
2 justice must, within 10 days after the notice of appeal is filed, transmit to the clerk of the district
3
court all papers relating to the case and a certified copy of his docket.’" Here, the RMC failed to
4
transmit an accurate Record on Appeal. Indeed several filing by the undersigned are missing
5
6
entirely. Therefore the underlying conviction should be overturned. NRCP 60's Drafters Note 2004
7 Amendment mentions that : The revisions to subdivision (c) are technical with the exception that
8 the 6-month limit now starts to run from service of notice of entry of the judgment rather than “the
9
date of rendition” of the judgment under the former rule." It leaves to much up to the vagaries of
10
what may have been said in court, what a judge might cross out later (as happened here), what a
11
judge may realize five minutes later when the stresses and pride one deals with in a courtroom
12
13 subside (as may have happened here, where Judge Howard, to his credit, admitted he was mistaken
14 in believing the undersigned failed to show up for the original November 14, 2011 court date).
15
Tolling, time for appeal Contractor's post-judgment “motion to amend order” qualified as a motion
16
to alter or amend judgment, which tolled the time contractor had to file notice of appeal; the motion
17
was in writing, invoked rule on amendment of judgments, asked to vacate the judgment of
18
19 dismissal, and appended proof that the charter, for want of which contractor's suit was lost, had
20 been restored and urged the district court to consider statute, which provided that reinstatement of
21
an administratively revoked limited liability charter related back to the date on which the company
22
forfeited its right to transact business as if such right had at all times remained in full force and
23
effect; disapproving Alvis v. State, Gaming Control Bd., 99 Nev. 184, 660 P.2d 980, Nardozzi v.
24
25 Clark Co. School Dist., 108 Nev. 7, 823 P.2d 285, and Whitehead v. Norman Kaye Real Estate, 80
26 Nev. 383, 395 P.2d 329. AA Primo Builders, LLC v. Washington, 2010, 245 P.3d So long as a
27
post-judgment motion for reconsideration is in writing, timely filed, states its grounds with
28
- 21
391
1 particularity, and requests a substantive alteration of the judgment, not merely the correction of a
2 clerical error, or relief of a type wholly collateral to the judgment, there is no reason to deny it
3
status as a motion to alter or amend judgment, which tolls the time in which a party has to file
4
notice of appeal; disapproving Alvis v. State, Gaming Control Bd., 99 Nev. 184, 660 P.2d 980,
5
6
Nardozzi v. Clark Co. School Dist., 108 Nev. 7, 823 P.2d 285, and Whitehead v. Norman Kaye
7 Real Estate, 80 Nev. 383, 395 P.2d 329. AA Primo Builders, LLC v. Washington, 2010, 245 P.3d
8 1190. The undersigned, Coughlin, filed tolling motions in this case, therefore tolling should be
9
found. Petitioner's postjudgment motions to amend or make additional findings of fact or to alter or
10
amend the judgment denying his petition to seal court records were “tolling motions,” and thus,
11
petitioner's notice of appeal filed before trial court's disposition of such motions was filed too early
12
13 to vest jurisdiction in the appellate court. In re Duong, 2002, 59 P.3d 1210, 118 Nev. 920. A notice
14 of appeal filed after the timely filing of a post-judgment tolling motion, but before the formal
15
disposition of the motion, is ineffective and fails to vest jurisdiction in the appellate court. Moran v.
16
Bonneville Square Associates, 2001, 25 P.3d 898, 117 Nev. 525. Timely motion for new trial is a
17
tolling motion for purposes of rule providing that notice of appeal filed before formal disposition of
18
19 any timely postjudgment motion shall have no effect. Rules Civ.Proc., Rule 59(a); Rules
20 App.Proc., Rule 4(a)(2). Chapman Industries v. United Ins. Co. of America, 1994, 874 P.2d 739,
21
110 Nev. 454. Timely motions for amendment of trial court's findings, amendment of the judgment
22
and new trial tolled running of appeal period and rendered ineffective all notices of appeal which
23
were filed before formal disposition of the timely postjudgment motions and thus, trial court erred
24
25 in concluding that it lacked jurisdiction to entertain the timely tolling motions. Rules Civ.Proc.,
26 Rules 52(b), 59(a, e); Rules App.Proc., Rule 4(a)(2). Chapman Industries v. United Ins. Co. of
27
America, 1994, 874 P.2d 739, 110 Nev. 454. So, everything in this case is a total mess if one
28
- 22
392
1 considers that the December 13th, 2011 filing by the undersigned was both a Notice of Appeal and
2 a tolling motion and then Judge Howard entered an Order that may have disposed of it, but he may
3
have entered it so soon after getting it that it suggests and extreme prejudice on his part, where the
4
Reno City Attorney arguably did not even have an opportunity to respond before Judge Howard
5
6
tee'd off on it....then its whether the subsquent "Supplemental" pleadings benefit from a "relation
7 back" doctrine or whether tolling applies and whether the original or any subsequent Notices of
8 Appeal were time, premature, or even effective. Now my head has exploded. And even if Judge
9
Howards 12/15/11 Order disposed of the tolling motion, Well, on 12/16/11 Coughlin filed another
10
Notice of Appeal, so this thing arguably ought to go forward, sorry Ms. Roberts, going to have to
11
earn some of the $112,000 a year in your pursuit of ruining my life (alright, that's dramatic and
12
13 lacks perspective) for the price of a candybar while you suborn the perjury of a trio of testosterone
14 addled mid 20 something knucklheads high fiving each other in the interrogation room video you
15
propounded and out in the hallways at trial until 9 pm at night....but its not like the RSIC police and
16
Wal-Mart, which lease the property its located on from those who own and run the RSIC have a
17
conflict of interest or anything, right? Plus, no one ever asked me or ascertained whether I have
18
19 any tribal blood, so this judgment may be void for lack of jurisdiction as, should that be the case,
20 jursidication is appropriate before Judge Van Walraven, not Judge Howard.

21
CONCLUSION
22
Regardless, the "Judgment" or "Order" here was not appropriately served on the undersigned
23
on November 30th, 2011. Further, the undersigned made many, many calls and written attempts
24
25 and trips to the RMC to obtain a copy of the Contempt Order, the Guilty Judgment, and the audio
26 recording of the Trial and all were either not granted, not provided, or provided in such a delayed
27
manner as to create an unduly prejudicial situation adversely effecting the undersigneds rights
28
- 23
393
1 sufficient to impermissibly compromise fundamentals notions of fairness and due process.
2 Further, the Order is "rendered" when Judge Howard says it is "rendered", and Judge Howard
3
clearly indicated, on the record, as demonstrated in the audio record, which will be available to the
4
District Court ultimately, the 10 day deadline for filing a Notice of Appeal would not begin running
5
6
until after the 3 day Summary Contempt Order's three day jail sentence concluded. Damn, this
7 stuff is complicated. Sure it nice to see the government goign hard as a mother to protect lil ol'
8 Wal-Mart whom is rumored to be the subject of a documentary about how they have a intricate
9
system of weasling out of their "Return Policy" and retaliating against those who call them on it.
10
11
Also, this document does not contain any social security number or other inappropriate material
12
14 Dated this January 30th, 2012

15
16
/s/ Zach Coughlin_________________
NV Bar No. 9473
18
1422 E. 9th St. #2
19 Reno, NV 89512
Tele: 775-338-8118
20 Fax: 949-667-7402
21
22
23
24
25
26
27
28
- 24
394
1 PROOF OF SERVICE
3
4 On January 30th, 2012, I, Mr. Zach Coughlin served the foregoing document by faxing and
5
6
PAM ROBERTS, ESQ
JOHN KADLIC, ESQ
P.O. Box 1900 Reno , NV 89505
9 Fax number: 7753342420
10
11
12
13 -----------------------------
Zach Coughlin
14
AGENT OF APPELLANT
15
16
17
18
19
20
21
22
23
24
25
26
27
28
- 25
395
1 INDEX TO EXHIBITS
2 1. EXHIBIT 1: COLLECTION OF EMAILED CORRESPONDENCE AND FILING WITH
3
THE RENO MUNICIPAL COURT (RMC); One hundred and fifty one (151) pages.
4
6
2. EXHIBIT 2: DECLARATION OF ZACHARY B. COUGHLIN, ESQ.; Eleven (11) pages.
8 3. EXHIBIT 3: Salary information for the years 2009 and 2010 for Deputy Reno City Attorney
9
Pam Roberts, Esq. from www.TransparentNevada.com; One (1) page.
10
11
4. EXHIBIT 4: December 12th, 2011 emailed filing (as authorized by the RMC in lieu of
12
13 faxing) to the RMC's renomunirecords@reno.gov that should, but does not appear
14 appropriately in the record on appeal, containing just the email cover sheets proving the
15
attached pdf's were received by the RMC and therefore the contents thereof should be
16
appropriately printed, provided, and filed by the RMC to the District Court, rather than the
17
illegible "four pages per page" style the RMC has put in the Record on Appeal; Five (5) pages.
18
19
20 5. EXHIBIT 5: Discovery produced by Reno City Attorney compared to receipt of

21
"purchased" items, both filed in legible form with the RMC, yet not inluded in legible form in
22
the Record on Appeal; Eight (8) pages.
23
24
25
26
27
28
- 26
396
FILED
Electronically
01-30-2012:04:48:12 PM
Clerk of the Court
EXHIBIT #1
EXHIBIT #1
397
Hotmail Print Message http://by148w.bay148.mail.live.com/mail/PrintMessages.aspx?cpids=4b...
records request for incident report urgent please

Sent: Tue 10/04/11 3:10 PM
To: renomunirecords@reno.gov
1 attachment
records request to reno city attorneys office oct 4.pdf (66.5 KB)
Zach Coughlin
121 River Rock St.
Reno, NV 89501
contents of this information is strictly prohibited.
398
1 of 47 1/29/2012 8:20 PM
CONFIDENTIALITY NOTICE
This message is confidential, intended only for the named recipient(s) and may contain information that is
privileged, work product or exempt from disclosure under applicable law. If you are not the intended recipient(s),
you are notified that any disclosure, copying, distribution or any action taken or omitted to be taken in reliance on
the contents of this information is prohibited and may be unlawful. If you receive this message in error, or are not
the named recipient(s), please notify the sender, delete this e-mail from your computer, and destroy any copies in
any form immediately. Receipt by anyone other than the named recipient(s) is not a waiver of any attorney-client,
work product, or other applicable privilege.
records request
Sent: Tue 10/04/11 4:41 PM
2 attachments
RMC subpoena.pdf (67.8 KB) , RECORD_REQUEST_Zach Coughlin to RMC.pdf (20.2 KB)
399
2 of 47 1/29/2012 8:20 PM
Zach Coughlin
121 River Rock St.
Reno, NV 89501
Sincerely,
Zach Coughlin
U.S.C. §§ 2510-2521, and may contain confidential information intended for the specified individual (s) only. If you are not the
intended recipient or an agent responsible for delivering it to the intended recipient, you are hereby notified that you have
received this document in error and that any review, dissemination, copying, or the taking of any action based on the contents
of this information is strictly prohibited.
400
3 of 47 1/29/2012 8:20 PM
Reno Municipal Court appointment of counsel

Sent: Mon 11/28/11 11:42 AM
To: ltaitel@sbcglobal.net; renomunirecords@reno.gov
Dear Mr. Taitel,

I understand you have been assigned to represent me in the Reno Municipal Court trespass Complaint against
me. Please note that my address has recently changed to:
Zach Coughlin
Reno, NV 89501
tel: 775 338 8118
fax: 949 667 7402
I have recently been evicted and it has caused enormous upheaval to my life, and I am indigent, as such, I believe a
continuance is necessary and ask that you seek one for the December 13th, 2011 "trial" that I only became aware of through
calling the Reno Municipal Court. Also, please provide me a copy of any motions or pleadings you have filed on my behalf
and any documentation that you have been provided by the court, opposing counsel, or anyone else. I prefer such
documentation be emailed, but I realize that may not be possible. I would like to obtain a copy of the Complaint and
Discovery, including the probable cause sheets and any witness statements as soon as possible.
Sincerely,
Zach Coughlin
401
4 of 47 1/29/2012 8:20 PM
privilege.
records request
Sent: Mon 11/28/11 2:30 PM
1 attachment
RECORD_REQUEST_FORM_2010[1] rmc trespass 11 13 11 records request 11-22185.pdf (20.8 KB)
Zach Coughlin, 817 N. Virginia St. #2

Reno, NV 89501
tel: 775 338 8118
fax: 949 667 7402
privilege.

402
5 of 47 1/29/2012 8:20 PM

Sent: Tue 11/29/11 3:14 PM
1 attachment

Zach Coughlin, Esq.

Reno, NV 89501
tel: 775 338 8118
fax: 949 667 7402
privilege.
Date: Tue, 22 Nov 2011 17:22:45 -0800
403
6 of 47 1/29/2012 8:20 PM
Zach Coughlin,
request of cd of trial in 11 CR 22176 2I

Sent: Thu 12/08/11 4:00 PM
Hello, I am writing to request a copy of the cd of the record of trial in 11 CR 22176 2I in addition to a copy of the Contempt
Order and any other orders made in that matter, in addition to a copy of the docket.
Please email these to me if possible. I will agree to pay the copying costs or the paper documents or the audio cd/dvd. I
need these as soon as possible please.
Zach Coughlin, Esq.

Reno, NV 89501
fax: 949 667 7402
404
7 of 47 1/29/2012 8:20 PM
privilege.
REQUEST FOR RECORDS CD/DVD OF TRIAL AND OTHER

DOCUMENTATION URGENT PLEASE
Sent: Thu 12/08/11 5:45 PM
1 attachment
RECORD_REQUEST_FORM_2010[1] trial cd and orders to RMC 12 8 11 final.pdf (441.5 KB)
Zach Coughlin, Esq.

Reno, NV 89501
tel: 775 338 8118
fax: 949 667 7402
405
8 of 47 1/29/2012 8:20 PM
privilege.
signed REQUEST FOR RECORDS CD/DVD OF TRIAL AND OTHER

DOCUMENTATION URGENT PLEASE
Sent: Thu 12/08/11 5:56 PM
1 attachment
RECORD_REQUEST_FORM_2010[1] trial cd and orders to RMC 12 8 11 signed.pdf (446.2 KB)
I am resending the Records and REcording of Trial request form, SIGNED, just in case that is necessary.
Thank You,
Zach Coughlin, Esq.

Reno, NV 89501
tel: 775 338 8118
fax: 949 667 7402
406
9 of 47 1/29/2012 8:20 PM
privilege.
Subject: REQUEST FOR RECORDS CD/DVD OF TRIAL AND OTHER DOCUMENTATION URGENT PLEASE
Date: Thu, 8 Dec 2011 17:45:27 -0800
Zach Coughlin, Esq.

Reno, NV 89501
tel: 775 338 8118
fax: 949 667 7402
407
10 of 47 1/29/2012 8:20 PM
privilege.
RMC said I could file this by email

Sent: Mon 12/12/11 7:28 PM
1 attachment
12 11 11 final motion for new trial city of reno v coughlin RMC 11 CR 22176.pdf (12.9 MB)
Zach Coughlin, Esq.

Reno, NV 8950
fax: 949 667 7402
408
11 of 47 1/29/2012 8:20 PM
privilege.
Motion for New Trial Etc. in RMC 11 CR 22176

Sent: Mon 12/12/11 7:40 PM
To: fiskm@reno.gov; renomunirecords@reno.gov
1 attachment
RMC 11 CR 2217 part two Exhibit 1 pages 1-300 of Motion for New trail from 12 12 2011.pdf (8.6 MB)
I received approval to file by email from RMC

This is the second file in the filing. Please note, the file name of the attachment should actually have the correct
case number of RMC CR 22176. It is missing the 6 on the end in the file name of the attachment
Zach Coughlin, Esq.

Reno, NV 89501
tel: 775 338 8118
fax: 949 667 7402
409
12 of 47 1/29/2012 8:20 PM
privilege.

Sent: Mon 12/12/11 7:57 PM
1 attachment
RMC 11 CR 22176 part three Exhibit 1 pages 301-600 of Motion for New trail from 12 12 2011.pdf (9.7
MB)
Zach Coughlin, Esq.

Reno, NV 89501
tel: 775 338 8118
fax: 949 667 7402
privilege.
RMC 11 CR 22176 part four Exhibit 1 pages 601-701 of Motion for New
trail from 12 12 2011 ey
410
13 of 47 1/29/2012 8:20 PM

Sent: Mon 12/12/11 8:23 PM
1 attachment
RMC 11 CR 22176 part four Exhibit 1 pages 601-701 of Motion for New trail from 12 12 2011 ey.pdf
(11.8 MB)
Zach Coughlin, Esq.

Reno, NV 89501
tel: 775 338 8118
fax: 949 667 7402
privilege.
Sent: Mon 12/12/11 8:29 PM
1 attachment
(14.4 MB)
411
14 of 47 1/29/2012 8:20 PM
Zach Coughlin, Esq.

Reno, NV 89501
tel: 775 338 8118
fax: 949 667 7402
privilege.
Subject: Motion for New Trial Etc. in RMC 11 CR 22176
Date: Mon, 12 Dec 2011 19:57:50 -0800
Zach Coughlin, Esq.

Reno, NV 89501
tel: 775 338 8118
fax: 949 667 7402
412
15 of 47 1/29/2012 8:20 PM
privilege.
audio of the November 30th Trial in Judge Howards court

Sent: Mon 12/12/11 9:56 PM
https://skydrive.live.com/redir.aspx?cid=43084638f32f5f28&resid=43084638F32F5F28!1031&parid=root
Maybe that will be easier, that is where the exculpatory video evidence is sent to you as well, a continuation of
exhibit one. I appreciate the RMC allowing me to file via email this way as sometimes my fax service is clunky.
Zach Coughlin, Esq.

Reno, NV 89501
tel: 775 338 8118
fax: 949 667 7402
413
16 of 47 1/29/2012 8:20 PM
privilege.
Sent: Tue 12/13/11 2:26 PM
1 attachment
(11.8 MB)
Zach Coughlin, Esq.

Reno, NV 89501
tel: 775 338 8118
fax: 949 667 7402
privilege.
records request
414
17 of 47 1/29/2012 8:20 PM

Sent: Tue 12/13/11 4:02 PM
To: renomunirecords@reno.gov; fiskm@reno.gov
2 attachments
RECORD_REQUEST_FORM walmart RMC 11 CR 22176 IC 110627 trial cd and orders to RMC 12 8 11
signed.pdf (453.4 KB) , RECORD_REQUEST_FORM_2010[1] rmc trespass 11 13 11 records request 11 CR
22185 City of Reno v Coughlin signed.pdf (510.9 KB)
Let this writing also werve as the cover letter called for in RMCR 5(D):
attorney's name,: Zach Coughlin, Esq.
the firm’s name: Zach Coughlin, Esq.
address, 817 N. Virginia St. #2
fax number 949 667 7402
telephone number: 775 229 6737
the attorney’s state bar number: NV Bar No: 9473
415
18 of 47 1/29/2012 8:20 PM
12 11 11 Defendants Motion for New Trial, Set Aside, Vacate Judgment/Conviction of underlying crime and
Contempt in Court's Presence finding/ IFP Petition/ Motion for Reconsideration/Notice of Appeal, Case Statment
in case: city of reno v coughlin RMC 11 CR 22176; Records Request form Defendant and Request for
Transcription at Public's Expense and Request for a copy of the audio recording of the Trial of 11 30, 2011 1:45
pm to end in RMC 11 CR 22176.
Additionally, I never received service of any Notice of Appearance nor a Motion to Withdraw by Lew Taitel, Esq.
the attorney appointed to represent me as required by RMCR Rule 3: Authorization to Represent
A. Attorneys representing defendants shall promptly serve written notice of
their appearance with the City Attorney and file the same with the Court.
B. An attorney desiring to withdraw from a case shall file a motion with the
court and serve the City Attorney with the same. The court may rule on
the motion or set a hearing."
Further, RMCR state: "Rule 5: Motions by Facsimile

A. All rules and procedures that apply to motions filed in person at the
court shall also apply to motions filed by facsimile, except as otherwise
specified in this rule.
B. All persons are eligible to use motion-by-facsimile procedures.
C. All motions filed by facsimile must be accompanied by a cover sheet
which must include the person’s name, address, fax number and
telephone number.
D. All facsimile motions filed by an attorney must include the attorney's
name, the firm’s name, address, fax number and telephone number. In
addition, the attorney’s state bar number must be conspicuously
displayed on the cover sheet.
E. All motions filed by facsimile must be accompanied by proof of service.
Service may be accomplished by facsimile when the receiving party is a
governmental agency, an attorney, or with the consent of the receiving
party. If service of the motion is accomplished by facsimile the 3-day
allowance for mailing shall not be computed into the time for response.
F. A defense attorney filing a motion in the first instance must also file a
proper authorization to represent.
G. Any motion received by the court after 4:30 p.m. or on a non-court day
shall be filed on the following court day.
Rule 6: Continuances
No continuance shall be granted, including a stipulated continuance, except
for good cause. A motion or stipulation for continuance must state the reason
therefore and whether or not any continuance has previously been sought or
granted."
416
19 of 47 1/29/2012 8:20 PM
fax number 949 667 7402

And: "Rule 9: Appeals to District Court

Except as otherwise provided in NRS 177.015 a defendant in a criminal action
tried before a Municipal Court Judge may appeal from the final judgment
therein to the Second Judicial District Court, at any time within 10 days from
the date that judgment is rendered."
Judge Howard informed me during his oral pronounce of his Contempt Order and Guilty Verdict on 11 30,2011
that he would afford me an additional 3 non judicial days to file a Notice of Appeal or any other Motion, Request
for Reconsideration, or other Motion seeking relief from his 11 30 2011 rulings on account of his sua sponte, with
no possibility of Stay or prior judicial review ordering his Marshalls to slam be into handcuffs and throw me into
Jail, kind of like in Houston v. 8th Judicial District Court, escept Judge Howard didn't cool down like Judge
Pomeranz did and Houston wasn't defending a criminal charge that carred a possibility of incarceration of
substantial length after being denied his 6th Amendment Right to Counsel. I am formally complaining about
Judge Howard;s conduct in that regard, please place a copy of this in his personnel file and let me know whether
you think a Complaint to the Judicial Discipline Commission would be appropriate, in your professional opinion.
I filed my Notice of Appeal in 11 cr 22176 yesterday with the RMC via email, as previously given permission to do
by the RMC. To the extent that was ineffective, let this writing act as a Notice of Appeal and agreement to pay
all charges required for such.
PROOF OF SERVICE:
I emailed a copy of this to Pam Roberts for the Plaintiff City of Reno on this date, a true and correct copy and
further email her a copy of all the 12 11 11 MOtion for New Trial, etc. yesterday to:
Pamela G Roberts
Company: Reno City Attorney's Office - Criminal Divison

Address: P.O. Box 1900
Reno
, NV
89505
Fax number: 775-334-2420
Sincerely,
Zach Coughlin, Esq.

Reno, NV 89501
fax: 949 667 7402
417
20 of 47 1/29/2012 8:20 PM
privilege.
IFP/ FINANCIAL INQUIRY APPLICATION

Sent: Wed 12/14/11 12:22 AM
To: ballardd@reno.gov; renomunirecords@reno.gov
2 attachments
Coughlin IFP and Financial Inquiry Application RMC 11222011 11 CR 26405 2I.pdf (381.9 KB) , Coughlin
IFP and Financial Inquiry Application RMC 11222011 11 CR 22176 2I.pdf (372.0 KB)
Zach Coughlin, Esq.
Reno, NV 89501
tel: 775 229-6737
fax: 949 667 7402
Nevada Bar No: 9473
Ms. Ballard,
Please note, the gentleman I worked with at the filing office counter today informed me there were no
appeal fees, bonds, or other charges that I could pay (including transcription costs) as "all charges are
418
21 of 47 1/29/2012 8:20 PM
being taken from" my bail in the respective matters. Please email me the audio from the November
20th,2011 Trial in 11 cr 22176 2I and proof of service of any Contempt Order or Guilty Verdict/Order
in that matter. Please file this as well as a Opposition to Any Motion to Continue Trial in 11 cr 26405,
dept 2, and a Motion to Set Aside or Vacate any Order Granting Continuance in response to such an
Order Granting Continuance. Please email, fax, or mail me a copy of the Notice of Appearances by
both Taitel and Puentes and the Motion and Order Granting Withdrawal of Taitel, if it exists. I would
like a copy of the docket in both 11 CR 26405 2I and 11 CR 22176, despite your informing me today
that I would need to subpoena the docket to have any chance of seeing it and that I would not be
provided access to documents in the public record, including Orders in both of these cases.
Sincerely,
Zach Coughlin
privilege.
RE: Message left on 12/13/2011

Sent: Wed 12/14/11 6:52 PM
To: roperj@reno.gov; fiskg@reno.gov; ballardd@reno.gov; renomunirecords@reno.gov
419
22 of 47 1/29/2012 8:20 PM
420
23 of 47 1/29/2012 8:20 PM
421
24 of 47 1/29/2012 8:20 PM
422
25 of 47 1/29/2012 8:20 PM
423
26 of 47 1/29/2012 8:20 PM
Zach Coughlin, Esq.
Reno, NV 89501
tel: 775 229-6737
fax: 949 667 7402
Nevada Bar No: 9473
privilege.
Date: Wed, 14 Dec 2011 16:26:47 -0800

From: RoperJ@reno.gov
To: ZachCoughlin@hotmail.com
Subject: Message left on 12/13/2011
Mr. Coughlin,
I received your message that you left on my phone on December 13, 2011 in regards to a complaint against Marshal
Menzel. The Marshal Division takes all citizen complaints seriously and investigates all complaints received in writing or
verbally. However, I would need more information from you prior to moving forward with an investigation. I encourage
you to come to the court to obtain a statement form, or contact me directly should you wish to pursue this matter. As to
your request to obtain a copy of Marshal Menzel's personnel file, I am unable to provide that to you without a valid
subpoena or warrant.
424
27 of 47 1/29/2012 8:20 PM
You also stated you were attempting to obtain a copy of your Judgement of Conviction from Dept. 4, specifically Veronica
Lopez, you can reach her at 326-6673. I am aware that a copy of your Judgement of Conviction was provided to you and
booked into your property on the night you were arrested. You are entitled to another copy should you wish.
Thank you,
Justin Roper
Chief Marshal/Department of Alternative Sentencing
775-334-1254
RMC 11 CR 22176
Sent: Thu 12/15/11 11:59 PM
To: howardk@reno.gov; ballardd@reno.gov; robertsp@reno.gov; fiskm@reno.gov;
renomunirecords@reno.gov; lopezv@reno.gov
Zach Coughlin, Esq.
Reno, NV 89501
tel: 775 229-6737
fax: 949 667 7402
Nevada Bar No: 9473
FAX COVER SHEET
TO: .RMC et al
FAX NO: RMC approved email filing

425
28 of 47 1/29/2012 8:20 PM
RE: . City of reno v Coughlin RMC 11 CR 22176 2I
Motion for New Trial,Notice of appeal and other issues
Dear RMC,
I do not mean to be disrespectful in contacting the court via email. I have been so stamped
out by the events of the last few months that its all I can do to try to protect my rights to get
information and media to the court in my attempts to access justice. Veronica Lopez told me on
the phone on Monday of this week that she would fax me a copy of the Order and Contempt finding from the 11
30, 2011 Trial, yet I have not received any such fax. I have not received any order in any form, not on my release
from the 3 days summary incarceration, not ever. The RMC confirmed there has been no Notice of Entry of any
order in their docket or anything, etc.
conflict of interest or other 60(b) basis for setting aside the verdict and contempt Order in
RMC 11 CR 22176 2I. I did not plead guilty in that case, and any RMC record that
suggests that is completely inaccurate. Please let me know if your records indicate I plead
guilty in that matter. Further, I have never been provided a copy of the Guilty Verdict/Order
in this matter, I requested on to be emailed to me and sent in the USPS mail. Please serve
me a copy of the order, preferably by email and USPS mail. Further, the "RMC's official
court transcriptionist" informed me yesterday that she could not quote me or accept an
money from me for the transcript on appeal. Further I have been told by court staff that I
would never be provided access to the audio recording of the Trial of 11 30, 2011. I believe
I have a right to it, and need it on an exigent basis in connection with the various motions I
have, will, or intend to to file challenging the decision in this case. The RMC filing office
informed me there has been no Notice of Entry of Order in this matter at this point.
T
Sincerely,
Zach Coughlin, Esq.
Reno, NV 89501
tel: 775 229-6737
426
29 of 47 1/29/2012 8:20 PM
fax: 949 667 7402
Nevada Bar No: 9473
privilege.
FW: RMC 11 CR 22176

Sent: Fri 12/16/11 12:00 AM
1 attachment
emergency filing rmc 11 cr 22176 12 15 11.pdf (260.9 KB)
Zach Coughlin, Esq.
Reno, NV 89501
tel: 775 229-6737
fax: 949 667 7402
427
30 of 47 1/29/2012 8:20 PM
Nevada Bar No: 9473
privilege.
To: howardk@reno.gov; ballardd@reno.gov; robertsp@reno.gov; fiskm@reno.gov; renomunirecords@reno.gov;
lopezv@reno.gov
Subject: RMC 11 CR 22176
Date: Thu, 15 Dec 2011 23:59:45 -0800
Zach Coughlin, Esq.
Reno, NV 89501
tel: 775 229-6737
fax: 949 667 7402
Nevada Bar No: 9473
FAX COVER SHEET

428
31 of 47 1/29/2012 8:20 PM
TO: .RMC et al
Dear RMC,
T
429
32 of 47 1/29/2012 8:20 PM
Sincerely,
Zach Coughlin, Esq.
Reno, NV 89501
tel: 775 229-6737
fax: 949 667 7402
Nevada Bar No: 9473
privilege.
emergency filings
Sent: Fri 12/16/11 7:55 AM
To: renomunirecords@reno.gov; robertsp@reno.gov
2 attachments
12 16 11 emergency filing with fax cover sheet rmc 11 cr 22176.pdf (330.0 KB) , fax cover sheet and
notice of denial of service clarification motion.pdf (202.1 KB)
430
33 of 47 1/29/2012 8:20 PM
Zach Coughlin, Esq.
Reno, NV 89501
tel: 775 229-6737
fax: 949 667 7402
Nevada Bar No: 9473
privilege.
FW: 121 River Rock

Sent: Sat 12/17/11 12:15 AM
To: ballardd@reno.gov; howardk@reno.gov; robertsp@reno.gov; renomunirecords@reno.gov; hazlett-
stevensc@reno.gov; puenteslaw@aol.com
Unbelievable. The idea that exculpating evidence is being withheld under some "lien" is transmitted into the
universe, next thing I know, my law office is broken in to and the Richard B. Hill gang is stil asserting a lien on
property that was stolen, in my opinion, as a result of their own negligence, leaving a window air conditioner unit
in a window, without even putting a window jam between the top of the sill and lower pain, facing a sidewalk a
block from the Lakemill Lodge and across from City Center Apartments, great. Great. And I still have not been
faxed or appropriately served the Order and Contempt Order I was told would be faxed to me.
Zach Coughlin, Esq.

431
34 of 47 1/29/2012 8:20 PM
Reno, NV 89501
tel: 775 229-6737
fax: 949 667 7402
Nevada Bar No: 9473
privilege.
To: cdbaker@richardhillaw.com; knielsen@richardhillaw.com; sgallagher@richardhillaw.com
Subject: RE: 121 River Rock
Date: Wed, 14 Dec 2011 15:43:38 -0800
Dear Mr. Baker,
I drove by the property recently and saw you had added boarding up the front door on very, very recently.
Unfortunately, your client and your firm, despite billing up some $1,060 for "securing" the property on top of
charging $900 for storage for what could fit inside a 10x20 foot storage shed, never once providing an inventory,
and contributing to a wrongful arrest and defamation causing me and my clients great damage, failed to take
even basic steps to secure the property, despite my making numerous written requests that you do so, including,
but not limited to, taking the damn window unit air conditioner out of the window facing the sidewalk on the
side of the house very close to the damn Lakemill Lodge, or even putting a strong stick in between the bottom
sliding window pain and the top of the sill to prevent someone from simply pushing in the window unit air
conditioner and pushing the window up to gain access. Further, a blanket that was on the orange circular couch
is clearly in the flower bed in front of the house. Additionally, there are reports that someone with your office
gave someone a mattress from the inventory of Coughlin Memory Foam (a Nevada licensed business located at
432
35 of 47 1/29/2012 8:20 PM
the property) and an expensive mattress platform has clearly been damaged and placed in the flower bed as
well, in addition to one of the wooden porch shades being removed from the front porch. You and your client
are, of course, liable for all of this.
Sincerely,
Zach Coughlin, Esq.
Reno, NV 89501
fax: 949 667 7402
Nevada Bar No: 9473
privilege.
From: cdbaker@richardhillaw.com
CC: rhill@richardhillaw.com
Subject: 121 River Rock
Date: Wed, 14 Dec 2011 13:50:02 -0800
Mr. Coughlin:
The River Rock property has been broken into. We believe the break-in occurred sometime on Monday,
433
36 of 47 1/29/2012 8:20 PM
December 12, 2011. There appear to be items missing, including the TV in the living room, perhaps a computer
monitor, and perhaps some stereo equipment. I can’t tell what else. The contents of the residence appear to
have been rifled through.
I am providing you with this information as a courtesy. This email does NOT constitute permission for you to go
to the River Rock property.
Casey D. Baker, Esq.
Richard G. Hill, Chartered
652 Forest Street
Reno, Nevada 89509
Phone: (775) 348-0888
Fax: (775) 348-0858
Email: cdbaker@richardhillaw.com
CONFIDENTIAL: ATTORNEY WORK PRODUCT; ATTORNEY-CLIENT PRIVILEGE

This e-mail may contain legally privileged or confidential information. If you are not the intended recipient, please do not read, copy, use, or disclose this
communication to anyone other than the intended recipient. If you have received this message in error, please notify the sender and delete the email message from
your system. Thank you.
Circular 230 Notice.
To ensure compliance with requirements imposed by the IRS, we inform you that any U.S. federal tax advice contained in this communication (including any
attachments) is not intended or written to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting,
marketing or recommending to another party any transaction or matter addressed herein.
emergency
Sent: Mon 12/19/11 4:32 PM
supplement to motion to set aside all orders, see attached exhibit, there is no initialing on
the filestampe for the order on the 11 30th, 2011
Tom said there was no docket entry or record of anything as of 12 13 11, i wans't provided copy of discovery for
over 30 days after arrest, rmc said it didn't have pc and witness satements but rec'd date indicates otherwise,
potentially, release sheets fromjail property inventory does not show 11 30 11 order, I declare under penalty of
434
37 of 47 1/29/2012 8:20 PM
perjury i did not refuse any order or the chance to have a physical copy of one.
Zach Coughlin, Esq.
Reno, NV 89501
tel: 775 229-6737
fax: 949 667 7402
Nevada Bar No: 9473
privilege.
I will fax this to Ms. Roberts and the RMC as well, this is a courtesy copy
Sent: Mon 12/19/11 5:15 PM
1 attachment
RMC 11 CR 22176 12 19 11 filing with 3 exhibits.pdf (9.1 MB)
Zach Coughlin, Esq.
435
38 of 47 1/29/2012 8:20 PM
Reno, NV 89501
tel: 775 229-6737
fax: 949 667 7402
Nevada Bar No: 9473
privilege.
no reply from Transcriptionist

Sent: Wed 12/21/11 12:02 AM
Zach Coughlin, Esq.
Reno, NV 89501
tel: 775 229-6737
fax: 949 667 7402

436
39 of 47 1/29/2012 8:20 PM
Nevada Bar No: 9473
Dear RMC,
It is my understanding the Judge Howard's order regarding email does not extend to the
address to which I am sending this correspondence: renomunirecords@reno.gov which is
the email address filing office supervisor Donna Ballard indicated to me was acceptable for
sending correspondence and filings to the RMC in lieu of faxes. I am writing because the
email address I was provided for RMC "official transcriptionist" Pam Longoni yielded a
"return to sender/failed transmission" message when I wrote to the email address provided
for her: plongoni@charter.net. Further, please see the forwarded email below that I sent to
Ms. Longoni. I have not received a return call from her regarding my recent messages to
her. I was told by a RMC filing office counter employee that I must get the transcript
through Ms. Longoni, as she is the "official transcriptionist" for the RMC. Please confirm
that I am no able to have another certified court reporter or transcriptionist create the
official transcript and indicate by what date this must be done, how it must be done, etc.
I was told by RMC filing office staff, including Ms. Ballard, that the RMC would not accept
any filings fees, bonds, or any other payments from me in relation to the underlying case 11
CR22176 2I or the appeal of that matter given that the RMC was holding the bail money I
paid into the court. If this is not the case or if I must pay anything into the RMC to ensure
that my appeal goes forward, please indicate as much in writing and with particularity. If I
am able to use any other transcriptionists and or the RMC has a list of such with contact
information, please provide such in writing.
Sincerely,
/s/Zach Coughlin
Zach Coughlin, Defendant/Appellant
437
40 of 47 1/29/2012 8:20 PM
privilege.
To: plongoni@charter.net
Subject: where to pay and how much
Date: Fri, 16 Dec 2011 22:44:37 -0800
Dear Ms. Longoni,

I have left you several messages. I wish to pay whatever it is I have to pay to get this
appeal transcript going and to preserve all my rights to review of the decision in RMC 11 cr
22176. Further, I would like a copy of the audio from the hearing as soon as possible.
Please provide specific detailed instructions as to how to pay and how much and anything
else I need to do.
Sincerely,
Zach Coughlin, Esq.
Reno, NV 89501
tel: 775 229-6737
fax: 949 667 7402
Nevada Bar No: 9473
438
41 of 47 1/29/2012 8:20 PM
privilege.
proof of insurance and registration Affidavit/Declaration and supporting

documentation
Sent: Mon 1/09/12 5:58 PM
To: renomunirecords@reno.gov; renodirect@reno.gov
1 attachment
Zach Coughlin license plate 838NER proof of insurance and registration for citations 544281 and
r47190389731.pdf (1737.4 KB)
Dear Reno Municipal Court Clerk's Office,
My name is Zachary B. Coughlin.
My vehicle and myself were appropriately insured, as verified by the attached Proof of Insurance for
my USAA automobile insurance at the time of both Traffic Citations No's: 544281 and R47190389731.
Copies of both citations are attached as well. My vehicle, at the time of both citations, was in
compliance with Nevada law with regard to vehicle registration. A true and correct copy of this
Affidavit and the attached copies of Traffic Citations No's: 544281 and R47190389731 and a true and
correct copy of the Proof of Insurance for the time of both citations from my USAA automobile
insurance (Policy Number 0098527 96C 7104 3) and a true copy of my DMV automobile Registration
Certificate for both 2011 and 2012 is attached hereto.
I attest that the assertions contained herein are true and make this Declaration under penalty of perjury
pursuant to NRS 199.145.
439
42 of 47 1/29/2012 8:20 PM
Please find attached a 6 page pdf with this Affidavit/Declaration and the accompanying copies of the
two citations and the proof of insurance at the time and date of both citations and the same for the
registration for the vehicle. I am disputing the "failure to come to a complete stop" part of the citation
in 544281 and understanding that I have a hearing in Reno Municipal Court on 2 6 12 at 8:30 am in
that regard, please correct me if that is not the correct date and time.
Also, I have called several times and keeping leaving messages about disputing the following parking
tickets, and do not believe any "additional fines" should have attached to the base fine where I have
communicated that I am disputing them and have not receive a response with regard to the date and
time of my hearing to dispute them:

Citation Details
Citation Number: 020146724
Amount Due: $60.00
Issue Date: 12/03/2011 10:30:00
Plate Number: 838NER
State: NV
Related Citations
We have found the following additional outstanding citations for this license plate
number. Please check the box next to each additional citation that you would like to pay
for at this time.
Citation Number Issue Date Amount Due
020145322 11/03/2011 03:20:00 $55.00
Sincerely,
440
43 of 47 1/29/2012 8:20 PM
Zach Coughlin
1422 E. 9th St. #2
RENO, NV 89512
tel: 775 338 8118
fax: 949 667 7402
** Notice** This message and accompanying documents are covered by the electronic Communications Privacy Act, 18 U.S.C. §§ 2510-2521, and may
contain confidential information intended for the specified individual (s) only. If you are not the intended recipient or an agent responsible for delivering it
to the intended recipient, you are hereby notified that you have received this document in error and that any review, dissemination, copying, or the taking
of any action based on the contents of this information is strictly prohibited. This message is confidential, intended only for the named
recipient(s) and may contain information that is privileged, attorney work product or exempt from disclosure under applicable
law. If you are not the intended recipient(s), you are notified that any disclosure, copying, distribution or any action taken or
omitted to be taken in reliance on the contents of this information is prohibited and may be unlawful. If you receive this message
in error, or are not the named recipient(s), please notify the sender, delete this e-mail from your computer, and destroy any
copies in any form immediately. Receipt by anyone other than the named recipient(s) is not a waiver of any attorney-client, work
debt validation documentation request and dispute letter under FDCPA

to City of Reno et al
Sent: Mon 1/09/12 6:09 PM
To: renodirect@reno.gov; renomunirecords@reno.gov
Dear City of Reno,

This writing is written notice to you that I dispute the debt your office and the City of Reno
and or the Reno Municipal Court has recently sent me, alleging that I owe some debt for
either parking tickets and or traffic citations. Further, I request verification and
documentation in support of your contention that I owe such a debt pursuant to the Fair
Debt Collection Practices Act.
Sincerely,
441
44 of 47 1/29/2012 8:20 PM
Zach Coughlin1422 E. 9th St. #2

RENO, NV 89512
tel: 775 338 8118
fax: 949 667 7402
To: renomunirecords@reno.gov; renodirect@reno.gov
Subject: proof of insurance and registration Affidavit/Declaration and supporting documentation
Date: Mon, 9 Jan 2012 17:58:47 -0800
Dear Reno Municipal Court Clerk's Office,
My name is Zachary B. Coughlin.
My vehicle and myself were appropriately insured, as verified by the attached Proof of Insurance for
my USAA automobile insurance at the time of both Traffic Citations No's: 544281 and R47190389731.
Copies of both citations are attached as well. My vehicle, at the time of both citations, was in
compliance with Nevada law with regard to vehicle registration. A true and correct copy of this
442
45 of 47 1/29/2012 8:20 PM
Affidavit and the attached copies of Traffic Citations No's: 544281 and R47190389731 and a true and
correct copy of the Proof of Insurance for the time of both citations from my USAA automobile
insurance (Policy Number 0098527 96C 7104 3) and a true copy of my DMV automobile Registration
Certificate for both 2011 and 2012 is attached hereto.
I attest that the assertions contained herein are true and make this Declaration under penalty of perjury
pursuant to NRS 199.145.
Please find attached a 6 page pdf with this Affidavit/Declaration and the accompanying copies of the
two citations and the proof of insurance at the time and date of both citations and the same for the
registration for the vehicle. I am disputing the "failure to come to a complete stop" part of the citation
in 544281 and understanding that I have a hearing in Reno Municipal Court on 2 6 12 at 8:30 am in
that regard, please correct me if that is not the correct date and time.
Also, I have called several times and keeping leaving messages about disputing the following parking
tickets, and do not believe any "additional fines" should have attached to the base fine where I have
communicated that I am disputing them and have not receive a response with regard to the date and
time of my hearing to dispute them:

Citation Details
Citation Number: 020146724
Amount Due: $60.00
Issue Date: 12/03/2011 10:30:00
Plate Number: 838NER
State: NV
443
46 of 47 1/29/2012 8:20 PM
Related Citations
We have found the following additional outstanding citations for this license plate
number. Please check the box next to each additional citation that you would like to pay
for at this time.
Citation Number Issue Date Amount Due
020145322 11/03/2011 03:20:00 $55.00
Sincerely,
Zach Coughlin
1422 E. 9th St. #2
RENO, NV 89512
tel: 775 338 8118
fax: 949 667 7402
444
47 of 47 1/29/2012 8:20 PM
Hotmail Print Message Page 1 of 1
where to pay and how much

Sent: Fri 12/16/11 10:44 PM
Dear Ms. Longoni,

I have left you several messages. I wish to pay whatever it is I have to pay to get
this appeal transcript going and to preserve all my rights to review of the decision in
RMC 11 cr 22176. Further, I would like a copy of the audio from the hearing as
soon as possible. Please provide specific detailed instructions as to how to pay and
how much and anything else I need to do.

Sincerely,
Zach Coughlin, Esq.
Reno, NV 89501
tel: 775 229-6737
fax: 949 667 7402
Nevada Bar No: 9473
** Notice** This message and accompanying documents are covered by the electronic Communications Privacy
Act, 18 U.S.C. §§ 2510-2521, and may contain confidential information intended for the specified individual (s)
only. If you are not the intended recipient or an agent responsible for delivering it to the intended recipient, you are
hereby notified that you have received this document in error and that any review, dissemination, copying, or the
taking of any action based on the contents of this information is strictly prohibited. This message is confidential,
445
http://by148w.bay148.mail.live.com/mail/PrintMessages.aspx?cpids=1198565f-dbcf-4a36-... 1/30/2012
Hotmail Print Message http://by148w.bay148.mail.live.com/mail/PrintMessages.aspx?cpids=f54...
Fwd: Attached Image / Subpoena

From: Donna Ballard (BallardD@reno.gov)
Sent: Tue 11/29/11 3:22 PM
1 attachment
0660_001.pdf (28.7 KB)
From: "MUNI CT 1st Floor Clerks" <canon@reno.gov>
To: "DONNA" <ballardd@reno.gov>
Date: Tue, 29 Nov 2011 16:14:15 -0800
Subject: Attached Image
Donna Ballard
Senior Court Specialist
1 South Sierra Street
Reno, Nevada 89501
(775)334-3101
RE: Attached Image / Subpoena

Sent: Tue 11/29/11 3:53 PM
To: Zach Coughlin (zachcoughlin@hotmail.com)
I am so sorry, I must have misunderstood.

These must be served and the affidavit portion completed before they can be file stamped in.
Thank you,
Donna
To: <ballardd@reno.gov>
Date: Tue, 29 Nov 2011 15:48:31 -0800
Subject: RE: Attached Image / Subpoena
Dear Ms. Ballard,

Thank you sending these and agreeing to stamp and emal them back to me
today, very, very much appreciate.
Sincerely,
446
1 of 5 1/29/2012 9:39 PM
Zach Coughlin
email is the best way to contact me, having phone issues today.
Zach Coughlin, Esq.

Reno, NV 89501
tel: 775 338 8118
fax: 949 667 7402
Date: Tue, 29 Nov 2011 15:22:14 -0800

From: BallardD@reno.gov
Subject: Fwd: Attached Image / Subpoena
Date: Tue, 29 Nov 2011 16:14:15 -0800
Donna Ballard
Reno, Nevada 89501
447
2 of 5 1/29/2012 9:39 PM
(775)334-3101
Donna Ballard
Reno, Nevada 89501
(775)334-3101
Fwd: Attached Image

Sent: Tue 11/29/11 4:47 PM
1 attachment
0661_001.pdf (42.9 KB)
Thank you. I am taking it up to the Department now.

Donna
Date: Tue, 29 Nov 2011 17:42:28 -0800
Donna Ballard
Reno, Nevada 89501
(775)334-3101
Re: IFP/ FINANCIAL INQUIRY APPLICATION

Sent: Wed 12/14/11 12:09 PM
To: Zach Coughlin (zachcoughlin@hotmail.com)
I did not inform you that you would need a subpoena to get a copy of the docket. I advised you that your
records request will be sufficient for copies of documents as public record and did not specify specific
documents.
I am forwarding this email to Department 2, Department 4 and the Chief Marshal for further action.
448
3 of 5 1/29/2012 9:39 PM
To: <ballardd@reno.gov>, <renomunirecords@reno.gov>
Date: Wed, 14 Dec 2011 00:22:07 -0800
Subject: IFP/ FINANCIAL INQUIRY APPLICATION
Zach Coughlin, Esq.

Reno, NV 89501
tel: 775 229-6737
fax: 949 667 7402
Nevada Bar No: 9473
Ms. Ballard,
Please note, the gentleman I worked with at the filing office counter today informed me there were no appeal
fees, bonds, or other charges that I could pay (including transcription costs) as "all charges are being taken
from" my bail in the respective matters. Please email me the audio from the November 20th,2011 Trial in 11 cr
22176 2I and proof of service of any Contempt Order or Guilty Verdict/Order in that matter. Please file this as
well as a Opposition to Any Motion to Continue Trial in 11 cr 26405, dept 2, and a Motion to Set Aside or
Vacate any Order Granting Continuance in response to such an Order Granting Continuance. Please email,
fax, or mail me a copy of the Notice of Appearances by both Taitel and Puentes and the Motion and Order
Granting Withdrawal of Taitel, if it exists. I would like a copy of the docket in both 11 CR 26405 2I and 11 CR
22176, despite your informing me today that I would need to subpoena the docket to have any chance of
seeing it and that I would not be provided access to documents in the public record, including Orders in both
of these cases.
Sincerely,
Zach Coughlin
449
4 of 5 1/29/2012 9:39 PM
Donna Ballard
Reno, Nevada 89501
(775)334-3101
450
5 of 5 1/29/2012 9:39 PM
Hotmail Print Message http://by148w.bay148.mail.live.com/mail/PrintMessages.aspx?cpids=e4...

Sent: Tue 11/29/11 3:48 PM
To: ballardd@reno.gov
4 attachments
RMC subpoena Ellis Walmart Manager and loss prevention manager.pdf (42.7 KB) , RMC subpoena
Janice store clerk walmart arrest receipt cashier 2nd St. 89501 Walmart.pdf (44.3 KB) , RMC subpoena
Store Manager Brian Bain 2nd st Walmart Reno and LP supervisor 2nd St. 89501 Walmart.pdf (43.3 KB) ,
RMC subpoena fill in the blank for name stylein city of reno v coughlin 11 cr 22176 2I.pdf (43.7 KB)
Dear Ms. Ballard,

Sincerely,
Zach Coughlin
Zach Coughlin, Esq.

Reno, NV 89501
tel: 775 338 8118
fax: 949 667 7402
privilege.
Date: Tue, 29 Nov 2011 15:22:14 -0800

451
1 of 22 1/29/2012 9:43 PM
Date: Tue, 29 Nov 2011 16:14:15 -0800
Donna Ballard
Reno, Nevada 89501
(775)334-3101

Sent: Tue 11/29/11 4:29 PM
1 attachment
RMC various walmart subpoenasreno v coughlin 11 cr 22176 2I.pdf (56.9 KB)
Zach Coughlin, Esq.

Reno, NV 89501
tel: 775 338 8118
fax: 949 667 7402
452
2 of 22 1/29/2012 9:43 PM
privilege.
Date: Tue, 29 Nov 2011 15:53:46 -0800

I am so sorry, I must have misunderstood.

These must be served and the affidavit portion completed before they can be file stamped in.
Thank you,
Donna
To: <ballardd@reno.gov>
Date: Tue, 29 Nov 2011 15:48:31 -0800
Dear Ms. Ballard,

Sincerely,
Zach Coughlin
Zach Coughlin, Esq.

Reno, NV 89501
tel: 775 338 8118
fax: 949 667 7402
453
3 of 22 1/29/2012 9:43 PM
Date: Tue, 29 Nov 2011 15:22:14 -0800

Date: Tue, 29 Nov 2011 16:14:15 -0800
Donna Ballard
Reno, Nevada 89501
(775)334-3101
Donna Ballard
Reno, Nevada 89501
(775)334-3101
IFP/ FINANCIAL INQUIRY APPLICATION
454
4 of 22 1/29/2012 9:43 PM

Sent: Wed 12/14/11 12:22 AM
To: ballardd@reno.gov; renomunirecords@reno.gov
2 attachments
Coughlin IFP and Financial Inquiry Application RMC 11222011 11 CR 26405 2I.pdf (381.9 KB) , Coughlin
IFP and Financial Inquiry Application RMC 11222011 11 CR 22176 2I.pdf (372.0 KB)
Zach Coughlin, Esq.
Reno, NV 89501
tel: 775 229-6737
fax: 949 667 7402
Nevada Bar No: 9473
Ms. Ballard,
Please note, the gentleman I worked with at the filing office counter today informed me there were no
appeal fees, bonds, or other charges that I could pay (including transcription costs) as "all charges are
being taken from" my bail in the respective matters. Please email me the audio from the November
20th,2011 Trial in 11 cr 22176 2I and proof of service of any Contempt Order or Guilty Verdict/Order
in that matter. Please file this as well as a Opposition to Any Motion to Continue Trial in 11 cr 26405,
dept 2, and a Motion to Set Aside or Vacate any Order Granting Continuance in response to such an
Order Granting Continuance. Please email, fax, or mail me a copy of the Notice of Appearances by
both Taitel and Puentes and the Motion and Order Granting Withdrawal of Taitel, if it exists. I would
like a copy of the docket in both 11 CR 26405 2I and 11 CR 22176, despite your informing me today
that I would need to subpoena the docket to have any chance of seeing it and that I would not be
provided access to documents in the public record, including Orders in both of these cases.
Sincerely,
Zach Coughlin
455
5 of 22 1/29/2012 9:43 PM
privilege.
RE: IFP/ FINANCIAL INQUIRY APPLICATION

Sent: Wed 12/14/11 3:45 PM
You might want to ask the gentleman clerk I was working with about
everything he said.
Zach Coughlin, Esq.
Reno, NV 89501
tel: 775 229-6737
fax: 949 667 7402
Nevada Bar No: 9473
456
6 of 22 1/29/2012 9:43 PM
privilege.
Date: Wed, 14 Dec 2011 12:09:40 -0800

Subject: Re: IFP/ FINANCIAL INQUIRY APPLICATION
I did not inform you that you would need a subpoena to get a copy of the docket. I advised you that your
records request will be sufficient for copies of documents as public record and did not specify specific
documents.
I am forwarding this email to Department 2, Department 4 and the Chief Marshal for further action.
To: <ballardd@reno.gov>, <renomunirecords@reno.gov>
Date: Wed, 14 Dec 2011 00:22:07 -0800
Subject: IFP/ FINANCIAL INQUIRY APPLICATION
Zach Coughlin, Esq.

Reno, NV 89501
tel: 775 229-6737
fax: 949 667 7402
Nevada Bar No: 9473
Ms. Ballard,
Please note, the gentleman I worked with at the filing office counter today informed me there were no appeal
fees, bonds, or other charges that I could pay (including transcription costs) as "all charges are being taken
from" my bail in the respective matters. Please email me the audio from the November 20th,2011 Trial in 11 cr
22176 2I and proof of service of any Contempt Order or Guilty Verdict/Order in that matter. Please file this as
457
7 of 22 1/29/2012 9:43 PM
well as a Opposition to Any Motion to Continue Trial in 11 cr 26405, dept 2, and a Motion to Set Aside or
Vacate any Order Granting Continuance in response to such an Order Granting Continuance. Please email,
fax, or mail me a copy of the Notice of Appearances by both Taitel and Puentes and the Motion and Order
Granting Withdrawal of Taitel, if it exists. I would like a copy of the docket in both 11 CR 26405 2I and 11 CR
22176, despite your informing me today that I would need to subpoena the docket to have any chance of
seeing it and that I would not be provided access to documents in the public record, including Orders in both
of these cases.
Sincerely,
Zach Coughlin
Donna Ballard
Reno, Nevada 89501
(775)334-3101
RE: Message left on 12/13/2011

Sent: Wed 12/14/11 6:52 PM
To: roperj@reno.gov; fiskg@reno.gov; ballardd@reno.gov; renomunirecords@reno.gov
Dear Chief Marshal Roper, and the RMC,
Thank you for your quick reply. I actually requested a copy of some
documentation related to my complaints about both incidents with Marshal
Mentzel be placed in his employment or personnel file, not that you provide
458
8 of 22 1/29/2012 9:43 PM
me a copy of his file. I would like one, or a copy of any complaints against
any Marshals, but I realize a subpoena would likely be required to have any
chance at that. Negligent Training, Hiring, Supervision.
I never received a copy of the Contempt Finding and Guilty

Verdict/Judgment/ORder or whatever from the 11 30, 2011 Trial before Judge
Howard in 11 CR22176 2I, though "Veronica" (no one will tell me her last
name, but she works closely with the RMC Judges) said the only "service" of
those Orders that was ever attempted on me occured while I was handcuffed,
after which point some Marshalls (I did not catch their names and they
manhandled me roughly into handcuffs, refusing to even let me save my
notes on my laptop at the sudden conclusion of Judge Howards Order and
Contempt finding. This is truly reprehensible to not even let me save my
damn notes and act like I was some perp who just knocked of a god damn
liquor store with a firearm. Some people need to get a grip inside. Please
place a copy of this written complaint against whatever Marshals were
involved in that in their employment/personnel files as well. Please provide
me a copy of any complaints you have received against any Marshals.
I would like a copy of the 11 30, 2011 Order and the audio of the Trial. I
believe you have a duty to find out what those Marshals did with this
document that "Veronica" alleges they attempted to serve on me, though,
even 14 days after the Trial, the "docket" in the RMC filing office still
contains no Order, no mention of an Order, and certainly no Proof of Service
of anything of the sort, nor have they responded to any of my documentation
requests or a request of the audio of the Trial of 11 30, 2011, despite an
exigent need for such to prepare Relief from Judgment Motions that have
deadlines of 10-20 days from "service" of the "Order", and who knows how
that will be measure. Why it was necessary to cost the public a bunch of
overtime pay for the 5 or so Marshalls, and who knows how many court staff
to stay until nearly 9pm on 11 30, 2011 to complete this "Trial", and how it
was such a damn emergency, especially where Richard Hill was able to get a
continuance because he was going to be on vacation in the trespass case
against me 11 CR 22185 2I, despite the fact that Lew Taitel never receive my
consent to such a Motion for Continuance, and further Taitel was arguably
conflicted out of representing me considering his "association" with Nevada
Court Services and the torts the committed against me, which resulted in a
459
9 of 22 1/29/2012 9:43 PM
lawsuit being filed against them, or at least an IPF Petition and Proposed
Complaint in District Court, prior to Taitel's appointment and representation.
If the RMC can afford all that damn overtime for everyone, why couldn't it
appoint me a defense attorney in RMC 11 CR 22176, especially where Judge
Howard ruled, not 20 minutes into Trial that he was finding me in Contempt
of Court and would decide the sentence (which obviously included a
possibility of incarceration) at the conclusion of the Trial?
Further M. Mentzel clearly bumped Donna Ballard out of the way in his zeal
to establish dominance of me, a person who was providing absolutely no
resistance at the time. Mentzel went on to start order me to leave the
premises after my conversation with Ballard and the file clerk was done.
Duh, Mentzel, it was 5:00 pm or so "closing time" what do you think I am
going to do, hang out and chill with you guys? Look at the Notice of Hearing
or Docket in RMC 11 CR22176 2I (I am also hereby requesting a copy of
the audio or video of the hearing from the RMC) and the hand written
interlineations I made on the document M. Mentzel provided me in court on
10 11, 2011, where I mention the problems associated with asking questions
about my Sixth Amendment Right to Counsel where only the possibility of
jail time exists. I asked Mentzel at that time a question about the process and
he got very angry, threatening, and insulting with me, then later, criticized my
appearance before Judge Gardner, I believe he said I was "sarcastic" and or
rude to the Judge in the same way I had been to Mentzel himself. I submit
that citizens trying to access justice should not be taken as a personal affront
to RMC employees like Mentzel, and that he needs to strongly consider how
he comes across to the public when he acts the way he does, and carries a
firearm, color of law, a badge, and apparently, the blessing of the RMC in
carrying out behavior that seems more fitting for a nightclub bouncer than a
Marshal. Further, the video played at arraignments is overly hostile and
threatening in my opinion, especially the parts where Judge Gardner makes
statements on the "extremely" poor choice it would be to represent one's self
pro se and all these tones and words used that make it sound like pro se
defendants will be punished for not either copping a plea or going with one
of the "four former prosecutors" who are now drawing a paycheck from the
RMC/Citizenry to fulfill the Sixth Amendment. I am something completely
other than impressed with the work done by Lew Taitel, Esq. for me in RMC
11 CR 22185 2I, in that regard. Why shouldn't defendants in the RMC, after
viewing the arraignment video and receiving representation like that which I
460
10 of 22 1/29/2012 9:43 PM
received from Taitel, feel like lambs being led to slaughter? Baah,
baaaaaaaaah! Two other Marshals were there yesterday when Mentzel was
berating me, I would like their names, please.
Now, just awhile ago, "RMC Court Transcriptionist Pam Longoni" called me
on the phone ("while driving" according to Ms. Longoni) and informed me
that the RMC must permit her access to the audio files, and that, while she is
linked into "their system" (meaning the RMC's), the RMC must take some
additional step to allow Ms. Longoni to access the audio files and continue
with the process of tending ot a request for a Transcript on Appeal. I was
told by a female RMC counter clerk that I would not ever be provided a copy
of the audio recording of the 11 30, 2011 Trial, but that I may purchase from
Ms. Longoni an official transcript, and that "appeal transcripts are billed at
$4.10 per page" etc. and that a substantial deposit would be required, and that
"No Transcript is considered to be official ordered, and commencement of
transcription will not begin, until receipt of the required deposit..." I asked
Ms. Longoni to inform me of everything I must do or pay to have the
transcript deemd officialy ordered and she informed me that she could not tell
me that, despite the apparent hard and fast deadlines applied to ordering,
officially, such a transcript, with the RMC in an Appeal context, until the
RMC allowed Ms. Longoni to access the RMC "system" and view/hear the
audio of the 11 30, 2011 Trial in 11 CR22176 2I. Ms. Longoni angrily hung
up the phone on me and is now not returning my calls and has failed to
respond to my request that she inform me, in writing, as to where to send
money or a deposit or anything else required for the transcript. I have yet to
receive a fax from the RMC's "Veronica" (whose last name has repeatedly
been denied to me) despite her angry assurances on the phone on 12 12, 2011
that she would finally hae the RMC attempt to appropriately (or almost
appropriately) serve me a copy of the Contempt Finding and Guilty Order
stemming from the 11 30, 2011 Trial in RMC 11 CR 22176 2I. Please have
this request and communication reiterated to whoever it concerns at the
RMC, and have such a copy of those documents emailed, faxed, and mailed
in the US Postal Service mail immediately. Further, please do the same with
respect to the audio of the 11 30, 2011 Trial in RMC 11 CR 22176 2I, and of
course I will pay a reasonable cost for the cd to the extent my IFP is not
granted. The RJC and Washoe District Court charge about $30 per cd. The
also provide copies of the dockets in cases without demanding a subpoena
461
11 of 22 1/29/2012 9:43 PM
force them to first. Please ask the gentleman Ms. Ballard saw me working
with yesterday what he said in that regard about providing me a copy of
anything, much less the docket in either RMC 11 CR 22176 2I or RMC 11
CR 22185 2I.
I believe I am entitled to a copy of the audio recording quickly, whether or

not a transcript has been officialy ordered, for the purposes of appeal or for
any other purposes. I believe in something called "transparency" in
goverment. Sunshine.
Let me ask you a question: If a Judge told you to jump off a bridge, would
you? It is my belief that Judge Howard ordered everyone to clear the
courtroom, including a female, shortly after my 11 20, 2011 Trial began and
it became clear that I was not going to lay down meekly for the Court, or for
Wal-Mart, or for the Reno City Attorney. 2 million of my people starved to
death during a "Great Famine" between 1848-1850 in Ireland, despite being
surrounded by water and fish, where the English were arresting Irishmen who
attempted to save their families and their own live's by fishing. I will be
fishing here, gentleman. Deal with it. I want that recording, for, among
many other reasons, to see if Judge Howard merely asked those who might
be called as witnesses to leave or whether he demanded every member of the
public leave before he sent me off to Guantanamo, er, I mean the Washoe
County Detention Facility after the Military Tribunal, er, the Trial in RMC.
Interestingly, while at the Washoe County Detention Facility, I have been
made to strip naked while being videotaped, wear a green dress for days on
end, go without a toothbrush for days, refused any opportunity to make
phone calls to protect my clients cases from prejudice, forced to spread apart
my buttocks and allow an overly long look at my anus by Sheriff's Deputies,
and further, I was forced to submit to a position on my knees in the
immediate vicinity of two Sheriff's Deputies crotches in some sadistic forced
simulation of performing oral sex upon those men. Rico/Negligent Hiring,
Training, Supervision, 42 USC Sec. 1983 Deprivation of Civil Rights Under
Color of State Law, etc., etc. Qui Tam, Whistleblower. Mr. Roper, I doubt a
Federal Court Judge would require that I have come obtained a Statement
From you to complain about any Marshal's conduct. I am pretty sure this and
my other correspondences have placed you on notice.
462
12 of 22 1/29/2012 9:43 PM
Sincerely,
Zach Coughlin, Esq.
Reno, NV 89501
tel: 775 229-6737
fax: 949 667 7402
Nevada Bar No: 9473
privilege.
Date: Wed, 14 Dec 2011 16:26:47 -0800

From: RoperJ@reno.gov
To: ZachCoughlin@hotmail.com
Subject: Message left on 12/13/2011
Mr. Coughlin,
I received your message that you left on my phone on December 13, 2011 in regards to a complaint against Marshal
Menzel. The Marshal Division takes all citizen complaints seriously and investigates all complaints received in writing or
verbally. However, I would need more information from you prior to moving forward with an investigation. I encourage
you to come to the court to obtain a statement form, or contact me directly should you wish to pursue this matter. As to
your request to obtain a copy of Marshal Menzel's personnel file, I am unable to provide that to you without a valid
subpoena or warrant.
463
13 of 22 1/29/2012 9:43 PM
You also stated you were attempting to obtain a copy of your Judgement of Conviction from Dept. 4, specifically Veronica
Lopez, you can reach her at 326-6673. I am aware that a copy of your Judgement of Conviction was provided to you and
booked into your property on the night you were arrested. You are entitled to another copy should you wish.
Thank you,
Justin Roper
Chief Marshal/Department of Alternative Sentencing
775-334-1254
RMC 11 CR 22176
Sent: Thu 12/15/11 11:59 PM
Zach Coughlin, Esq.
Reno, NV 89501
tel: 775 229-6737
fax: 949 667 7402
Nevada Bar No: 9473
FAX COVER SHEET
TO: .RMC et al

464
14 of 22 1/29/2012 9:43 PM
Dear RMC,
T
Sincerely,
Zach Coughlin, Esq.
Reno, NV 89501
tel: 775 229-6737
465
15 of 22 1/29/2012 9:43 PM
fax: 949 667 7402
Nevada Bar No: 9473
privilege.
FW: RMC 11 CR 22176

Sent: Fri 12/16/11 12:00 AM
1 attachment
Zach Coughlin, Esq.
Reno, NV 89501
tel: 775 229-6737
fax: 949 667 7402
466
16 of 22 1/29/2012 9:43 PM
Nevada Bar No: 9473
privilege.
lopezv@reno.gov
Date: Thu, 15 Dec 2011 23:59:45 -0800
Zach Coughlin, Esq.
Reno, NV 89501
tel: 775 229-6737
fax: 949 667 7402
Nevada Bar No: 9473
FAX COVER SHEET

467
17 of 22 1/29/2012 9:43 PM
TO: .RMC et al
Dear RMC,
T
468
18 of 22 1/29/2012 9:43 PM
Sincerely,
Zach Coughlin, Esq.
Reno, NV 89501
tel: 775 229-6737
fax: 949 667 7402
Nevada Bar No: 9473
privilege.
FW: 121 River Rock

Sent: Sat 12/17/11 12:15 AM
469
19 of 22 1/29/2012 9:43 PM
Zach Coughlin, Esq.
Reno, NV 89501
tel: 775 229-6737
fax: 949 667 7402
Nevada Bar No: 9473
privilege.
Date: Wed, 14 Dec 2011 15:43:38 -0800
Dear Mr. Baker,
470
20 of 22 1/29/2012 9:43 PM
Sincerely,
Zach Coughlin, Esq.
Reno, NV 89501
fax: 949 667 7402
Nevada Bar No: 9473
privilege.
Date: Wed, 14 Dec 2011 13:50:02 -0800
Mr. Coughlin:
471
21 of 22 1/29/2012 9:43 PM
652 Forest Street
Reno, Nevada 89509
Phone: (775) 348-0888
Fax: (775) 348-0858

472
22 of 22 1/29/2012 9:43 PM
Hotmail Print Message http://by148w.bay148.mail.live.com/mail/PrintMessages.aspx?cpids=66...
request for arrest records

Sent: Tue 10/04/11 3:22 PM
To: lcooley@rsic.org; voldenburg@rsic.org; rariwite@rsic.org; police@rsic.org
1 attachment
records request to rsic police.pdf (65.8 KB)
lcooley@rsic.org, voldenburg@rsic.org, rariwite@rsic.org, police@rsic.org,

TO:
Larry Cooley, Chief of Police
October 4, 2011
Dear Reno Sparks Indian Colony Police Records Department and

Administrators, including Chief Cooley, Attorney Oldenburg, and Tribal
Administrator Ariwhite,
My name is Zach Coughlin. I wish to obtain any and all records available
incident to an arrest at the E. 2nd St. Walmart by the Reno Sparks Indian
Colony Police on or about Saturday October 10th, 2011 at between
approximately 9pm and 10:30pm. I want any and all records, video, audio,
paper documentation or otherwise that I have a right to. I am representing
myself. I have sought these records from the Reno Municipal Court's
Records Office and they kept telling me they didn't have them yet and that I
should return sometime soon. Finally, they admitted the do not keep these
records and they must be obtained from your office. This delay has unduly
prejudiced my case and I request that you provide these records to me at
once, with no delay, please. The RS Indian Colony Police refused to give me
a copy of these records today when I spoke with Sargent Avansino, who was
polite and helpful otherwise. I believe this case should be dismissed.
Signed electronically and signed in a signed attached PDF. I can come pick
the records up with identification if that is required or I hereby give you
473
1 of 19 1/29/2012 10:01 PM
permission to email them to me or mail them to the address below:

Zach Coughlin
121 River Rock St.
Reno, NV 89501
Sincerely,
Zach Coughlin
Subpoena and request for arrest records

Sent: Tue 10/04/11 4:26 PM
2 attachments
gov.uscourts.nvd.52455.8.0 hernandez against reno sparks indian police.PDF (224.4 KB) ,
gov.uscourts.mied.209033.1.0 Sweeney Class Action Walmart.PDF (415.2 KB)
474
2 of 19 1/29/2012 10:01 PM
October 4, 2011
Dear Reno Sparks Indian Colony Police Department and Counsel,
My name is Zach Coughlin. I have now been informed by both the Reno
Municipal Court and the Reno City Attorney's officer that neither entity can
provide my requested records. You have them, I believe I have a
constitutional right to them. If you feel differently, please explain in writing
why that is the case. Please review:
Construction and effect, in false imprisonment action, of statute providing for
detention of sus-
pected shoplifters, 47 A.L.R. 3d 998
Liability of municipality or other governmental unit for failure to provide
police protection, 46
A.L.R. 3d 1084
Personal liability of policeman, sheriffs, or similar peace officer or his bond,
for injury suffered as
a result of failure to enforce law or arrest lawbreaker, 41 A.L.R. 3d 700
Admissibility of defendant's rules or instructions for dealing with shoplifters,
in action for false
imprisonment or malicious prosecution, 31 A.L.R. 3D 705
Genuine issue of material fact, as to whether homeowner voluntarily

consented to warrantless search of his residence, or whether he had been
coerced into giving his consent by officers' alleged refusal to honor his
requests to speak with attorney, and by their alleged threats that, unless he
consented, he would be forced to wait outside while officers obtained
warrant and then "t[ore] his house apart and arrest[ed] his girlfriend,"
precluded entry of summary judgment for government in civil forfeiture
475
3 of 19 1/29/2012 10:01 PM
action in which only evidence supporting government's position was

evidence that homeowner sought to suppress. U.S.C.A. Const.Amend. 4;
Comprehensive Drug Abuse Prevention and Control Act of 1970, §
511(a)(7), 21 U.S.C.A. § 881(a)(7). U.S. v. One Piece of Real Property
Located at 5800 SW 74th Ave., Miami, Fla., 363 F.3d 1099;Manning v
Commonwealth (1959, Ky) 328 SW2d 421.
Please consider this a subpoena requesting all records having anything to do

with this incident.
I wish to obtain any and all records available incident to IC110627 at the E.
2nd St. Walmart by the Reno Sparks Indian Colony Police on or about
Saturday October 10th, 2011 at between approximately 9pm and 10:30pm. I
want any and all records, video, audio, paper documentation or otherwise that
I have a right to. I am representing myself. I have sought these records from
the Reno Municipal Court's Records Office and they kept telling me they
didn't have them yet and that I should return sometime soon. Finally, they
admitted the do not keep these records and they must be obtained from your
office. This delay has unduly prejudiced my case and I request that you
provide these records to me at once, with no delay, please. The RS Indian
Colony Police refused to give me a copy of these records today when I spoke
with Sargent Avansino, who was polite and helpful otherwise. I believe this
case should be dismissed.
Zach Coughlin
121 River Rock St.
Reno, NV 89501
Sincerely,
476
4 of 19 1/29/2012 10:01 PM
Zach Coughlin
This message is confidential, intended only for the named recipient(s) and may contain information
that is privileged, work product or exempt from disclosure under applicable law. If you are not the
intended recipient(s), you are notified that any disclosure, copying, distribution or any action taken or
omitted to be taken in reliance on the contents of this information is prohibited and may be unlawful. If
you receive this message in error, or are not the named recipient(s), please notify the sender, delete
this e-mail from your computer, and destroy any copies in any form immediately. Receipt by anyone
other than the named recipient(s) is not a waiver of any attorney-client, work product, or other
applicable privilege.
Civil Results
Party Name Court Case NOS Date Filed Date Closed
1 Reno Sparks Indian Tribal Council (dft) nvdce 3:2007-cv-00023 440 02/27/2007 07/17/2007
Appellate Results
Party Name Court Case NOS Date Filed Date Closed
2 Reno Sparks Indian Tribal Council (pty) 09cae 07-16422 3440 08/10/2007 12/27/2007
RE: request for arrest records

Saved: Sun 12/04/11 3:49 AM
Zach Coughlin, Esq.

477
5 of 19 1/29/2012 10:01 PM
Reno, NV 89501
tel: 775 338 8118
fax: 949 667 7402
privilege.
To:pgoins@rsic.org, lcooley@rsic.org; voldenburg@rsic.org; rariwite@rsic.org; police@rsic.org
Subject: request for arrest records
Date: Tue, 4 Oct 2011 15:22:39 -0700
lcooley@rsic.org, voldenburg@rsic.org, rariwite@rsic.org, police@rsic.org,

TO:
Larry Cooley, Chief of Police
October 4, 2011
Dear Reno Sparks Indian Colony Police Records Department and

Administrators, including Chief Cooley, Attorney Oldenburg, and Tribal
Administrator Ariwhite,
478
6 of 19 1/29/2012 10:01 PM

a copy of these records today when I spoke with Sargent Avansino, who was
polite and helpful otherwise. I believe this case should be dismissed.
Zach Coughlin
121 River Rock St.
Reno, NV 89501
Sincerely,
Zach Coughlin
479
7 of 19 1/29/2012 10:01 PM
6:49 mark
Sent: Sun 12/04/11 4:05 AM

We spend half the "trial" arguing about whether your lying cops had enough
"information" (their definition included personally identifiable information to
identify the accused sufficiently to issue a citation, A CURRENT NEVADA'S
DRIVERS LICENSE WOULD DO JUST FINE ON THAT ACCOUNT) to
issue a citation, and how, because they didn't, they had to conduct a search
incident to arrest, yet YOUR OWN DAMN VIDEO (OR RATHER,
WALMART'S, BUT ITS HARD TO SEE WHERE YOU GUYS END AND
WALMART BEGINS), THAT YOU EFFING PRODUCED (OR RATHER
THE RENO CITY ATTORNEY PRODUCED AFTER THE BOYS AT
WALMART "COMPILED" VIDEO, WHICH CURIOUSLY DID CONTAIN
A FUCKING SECOND OF VIDEO SHOWING ANY OF THE ALLEGED
CONCEALING OR CONSUMING THE ITEMS IN QUESTION! SHOWS
THE ACCUSED HANDING THEM A DRIVERS LICENSE AND THEM
CALLING IT IN TO CHECK FOR PRIORS (THAT WILL SHOW UP IN
DISPATCH REPORTS AND OTHER DOCUMENTATION). THESE
KEYSTONE COP EFFUPS HAVE DEFAMED ME AND YOU
SPONSORED IT, CULTIVATED IT.
I CAN GIVE YOU UNTIL TUESDAY TO MAKE A STRONG EFFORT TO
CORRECT THIS, AFTER THAT, I HAVE TO MAKE MY MOVES AND
FILE MY MOTIONS. JUDGE VAN WALRAVEN WOULD BE
ASHAMED OF HOW THIS HAS BEEN HANDLED.
480
8 of 19 1/29/2012 10:01 PM

I want you to move for, OR ASK THE CITY ATTORNEY TO MOVE

FOR, a Rule 59 Motion to Set Aside or some other motion to have the
Judgment Set Aside. Your cop witness clearly had a driver's license
produced to him at the 6:49 mark of WALMART'S OWN DAMN VIDEO!
And you suborned his perjury on the witness stand in violation of many of
the POLICE CODES YOU ARE HELD TO. Further, what are you going to
say when the UPC from the alleged receipt appears on the purchased receipt,
in combination with Frontino's adamant assertion that they wouldn't, in
combination with the same from Crawford, in combination with Frontino
admitting he couldn't hear what was said between the accused and the
cashier, in combination with the "same UPC, hit the quantity number"
practice common at Walmart? Further, your Officer Crawford, as a witness,
admitted on tape at the trial that "he didn't have enough EVIDENCE to issue
a citation so he arrested and did a search incident to arrest" to get more
evidence before Reno City Attorney Roberts and Judge Howard could jump
in and cut him off. That's gametime. Frontino, Crawford, and Braunworth,
sat around joking like goofy frat boys the preceeding 30 minutes in the
hallway in front of the court room, like a group of 3 buddies who hang out all
the time, except, 2 get paid by you, and one gets paid by Wal-Mart, who pay
the people who pay you. Then all three of them wait around the hear the
verdict at 8 pm hours after Frontino and Crawford finished testifying.
Maybe the don't realize Judge Howard wasn't ruling on the Appeal, the Rule
59, 60 motions, Motion for Reconsideration, defamation, wrongful arrest,
false imprisonment lawsuits, etc. Fix it now while you can. Wait till I get the
video from Walmart that Frontino is hiding from you, and don't you just want
to know if some "other" audio or video exists of the interrogation.
Sincerely,
Zach Coughlin, Esq.

Reno, NV 89501
tel: 775 338 8118
fax: 949 667 7402
481
9 of 19 1/29/2012 10:01 PM
privilege.
Re: your cop lying, see your video drivers license produce ap overview at
6:49 mark
From: Pamela Roberts (robertsp@reno.gov)
Sent: Mon 12/05/11 7:49 AM
To: Zach Coughlin (zachcoughlin@hotmail.com); lcooley@rsic.org; voldenburg@rsic.org; rariwite@rsic.org;
police@rsic.org
Mr. Coughlin: Please discontinue any further correspondence with me via email. Please file and serve any
motions or notices in accordance with the rules of the applicable court. Pam Roberts, Deputy City Attorney.
To: <lcooley@rsic.org>, <voldenburg@rsic.org>, <rariwite@rsic.org>, <police@rsic.org>,
<robertsp@reno.gov>
Date: Sun, 4 Dec 2011 04:05:27 -0800

"information" (their definition included personally identifiable information
to identify the accused sufficiently to issue a citation, A CURRENT
482
10 of 19 1/29/2012 10:01 PM
NEVADA'S DRIVERS LICENSE WOULD DO JUST FINE ON THAT

ACCOUNT) to issue a citation, and how, because they didn't, they had to
conduct a search incident to arrest, yet YOUR OWN DAMN VIDEO (OR
RATHER, WALMART'S, BUT ITS HARD TO SEE WHERE YOU GUYS
END AND WALMART BEGINS), THAT YOU EFFING PRODUCED
(OR RATHER THE RENO CITY ATTORNEY PRODUCED AFTER THE
BOYS AT WALMART "COMPILED" VIDEO, WHICH CURIOUSLY
DID CONTAIN A FUCKING SECOND OF VIDEO SHOWING ANY OF
THE ALLEGED CONCEALING OR CONSUMING THE ITEMS IN
QUESTION! SHOWS THE ACCUSED HANDING THEM A DRIVERS
LICENSE AND THEM CALLING IT IN TO CHECK FOR PRIORS
(THAT WILL SHOW UP IN DISPATCH REPORTS AND OTHER
DOCUMENTATION). THESE KEYSTONE COP EFFUPS HAVE
DEFAMED ME AND YOU SPONSORED IT, CULTIVATED IT.
I CAN GIVE YOU UNTIL TUESDAY TO MAKE A STRONG EFFORT
TO CORRECT THIS, AFTER THAT, I HAVE TO MAKE MY MOVES
AND FILE MY MOTIONS. JUDGE VAN WALRAVEN WOULD BE
THE OFFICERS ARE KAMERON CRAWFORD AND BRAUNWORTH, WHO CAME ACROSS
A FAR MORE COGNITIVELY IMPAIRED IN COURT THAN HE DID IN PERSON, TO AN
EXTENT THAT WOULD SUGGEST HE WAS DISHONORING THE LEGAL PROCESS BY HIS

say when the UPC from the alleged receipt appears on the purchased
receipt, in combination with Frontino's adamant assertion that they
wouldn't, in combination with the same from Crawford, in combination
with Frontino admitting he couldn't hear what was said between the accused
and the cashier, in combination with the "same UPC, hit the quantity
number" practice common at Walmart? Further, your Officer Crawford, as
a witness, admitted on tape at the trial that "he didn't have enough
EVIDENCE to issue a citation so he arrested and did a search incident to
483
11 of 19 1/29/2012 10:01 PM
arrest" to get more evidence before Reno City Attorney Roberts and Judge
Howard could jump in and cut him off. That's gametime. Frontino,
Crawford, and Braunworth, sat around joking like goofy frat boys the
preceeding 30 minutes in the hallway in front of the court room, like a
group of 3 buddies who hang out all the time, except, 2 get paid by you, and
one gets paid by Wal-Mart, who pay the people who pay you. Then all
three of them wait around the hear the verdict at 8 pm hours after Frontino
and Crawford finished testifying. Maybe the don't realize Judge Howard
wasn't ruling on the Appeal, the Rule 59, 60 motions, Motion for
Reconsideration, defamation, wrongful arrest, false imprisonment lawsuits,
etc. Fix it now while you can. Wait till I get the video from Walmart that
Frontino is hiding from you, and don't you just want to know if some
"other" audio or video exists of the interrogation.
Sincerely,
Zach Coughlin, Esq.

Reno, NV 89501
tel: 775 338 8118
fax: 949 667 7402
484
12 of 19 1/29/2012 10:01 PM
defamation lawsuit/wrongful arrest/perjury under color of state law

arrest.
Sent: Mon 12/12/11 10:07 PM
To: nhardjo@rsic.org; carthene@reno.gov; htobey@rsic.og
Dear RSIC Police and Ms. Carthen,

Please provide me a copy of the video cd/dvd that Walmart's Frontino handed
your two Officers, Kameron Crawford and Braunworth when they were
escorting the suspect from the interrogation room in RMC 11 CR 22176. I
don't care if you think the tape/disc is not probative. I want it. Plus I want all
the dispatch tapes, especially where Kameron is calling in the suspect's
driver's license (which he testified the suspect refused to give him, but darn
it, its right there on the interrogation room footage, Kameron being givent he
driver's license card. Then the walmart guy Frontino testifies there was not
footage other than the interrogation room footage, yet he clearly hands the
two RSIC officers a cd/dvd when there are leaving the room. I am still
bothered that Sargent Avansino stonewalled me on the discovery for a whole
month following the arrest.
Sincerely,
Zach Coughlin
<robertsp@reno.gov>
Date: Sun, 4 Dec 2011 04:05:27 -0800

485
13 of 19 1/29/2012 10:01 PM

DID CONTAIN A FriggING SECOND OF VIDEO SHOWING ANY OF
THE ALLEGED CONCEALING OR CONSUMING THE ITEMS IN
AND FILE MY MOTIONS.

486
14 of 19 1/29/2012 10:01 PM
preceding 30 minutes in the hallway in front of the court room, like a group
of 3 buddies who hang out all the time, except, 2 get paid by you, and one
gets paid by Wal-Mart, who pay the people who pay you. Then all three of
them wait around the hear the verdict at 8 pm hours after Frontino and
Crawford finished testifying. Maybe the don't realize Judge Howard wasn't
ruling on the Appeal, the Rule 59, 60 motions, Motion for Reconsideration,
defamation, wrongful arrest, false imprisonment lawsuits, etc. Fix it now
while you can. Wait till I get the video from Walmart that Frontino is hiding
from you, and don't you just want to know if some "other" audio or
video exists of the interrogation.
Sincerely,
Zach Coughlin, Esq.

Reno, NV
fax: 949 667 7402
FW: defamation lawsuit/wrongful arrest/perjury under color of state law

487
15 of 19 1/29/2012 10:01 PM
arrest.
Sent: Fri 12/16/11 7:56 AM
To: nharjo@rsic.org
Zach Coughlin, Esq.
Reno, NV 89501
tel: 775 229-6737
fax: 949 667 7402
Nevada Bar No: 9473
privilege.
To: nhardjo@rsic.org; carthene@reno.gov; htobey@rsic.og
Subject: defamation lawsuit/wrongful arrest/perjury under color of state law arrest.
Date: Mon, 12 Dec 2011 22:07:47 -0800
Dear RSIC Police and Ms. Carthen,

Please provide me a copy of the video cd/dvd that Walmart's Frontino handed
488
16 of 19 1/29/2012 10:01 PM
your two Officers, Kameron Crawford and Braunworth when they were
escorting the suspect from the interrogation room in RMC 11 CR 22176. I
don't care if you think the tape/disc is not probative. I want it. Plus I want all
the dispatch tapes, especially where Kameron is calling in the suspect's
driver's license (which he testified the suspect refused to give him, but darn
it, its right there on the interrogation room footage, Kameron being givent he
driver's license card. Then the walmart guy Frontino testifies there was not
footage other than the interrogation room footage, yet he clearly hands the
two RSIC officers a cd/dvd when there are leaving the room. I am still
bothered that Sargent Avansino stonewalled me on the discovery for a whole
month following the arrest.
Sincerely,
Zach Coughlin
<robertsp@reno.gov>
Date: Sun, 4 Dec 2011 04:05:27 -0800

DID CONTAIN A FriggING SECOND OF VIDEO SHOWING ANY OF
THE ALLEGED CONCEALING OR CONSUMING THE ITEMS IN 489
17 of 19 1/29/2012 10:01 PM

AND FILE MY MOTIONS.

preceding 30 minutes in the hallway in front of the court room, like a group
of 3 buddies who hang out all the time, except, 2 get paid by you, and one
gets paid by Wal-Mart, who pay the people who pay you. Then all three of
them wait around the hear the verdict at 8 pm hours after Frontino and
Crawford finished testifying. Maybe the don't realize Judge Howard wasn't
ruling on the Appeal, the Rule 59, 60 motions, Motion for Reconsideration,
defamation, wrongful arrest, false imprisonment lawsuits, etc. Fix it now
490
18 of 19 1/29/2012 10:01 PM
while you can. Wait till I get the video from Walmart that Frontino is hiding
from you, and don't you just want to know if some "other" audio or
video exists of the interrogation.
Sincerely,
Zach Coughlin, Esq.

Reno, NV
fax: 949 667 7402
491
19 of 19 1/29/2012 10:01 PM
Hotmail Print Message http://by148w.bay148.mail.live.com/mail/PrintMessages.aspx?cpids=dd...
motion for continuance

Sent: Fri 11/11/11 1:40 AM
Dear Counselor Roberts,

I believe you are the prosecutor for the case against me, State v. Coughlin,
which I believe is still set for trial on November 14th, I think at 1pm. I am
not totally sure that there is a duty to serve you on such a thing, but I filed a
Motion for Continuance and a Motion for Appointment of Counsel
sometime within about the last 10 days, I would say. I believe I attempted to
copy you on it, but have recently been evicted and its been a very difficult
time in terms of coordinating paperwork, etc., etc. I apologize for any
inconvenience this may have cause you. I am unsure of whether the
November 14th trial is still set to take place. I believe fairness dictates that it
be continued to a later date. I have request counsel but have yet to receive
any, or wait, I was denied a request to receive counsel because Judge Howard
said there is not a 6th amendment right to counsel where, even though jail
time is technically a possibility, the state does not anticipate seeking jail
time...or something like that, however, I found some cases that say I should
still get counsel appointed, especially where I show I am indigent, and I
believe I qualify as indigent rather easily. Can and would you agree to a
continuance? I believe I tried to contact about this prior to filing my Request
for a Continuance. I maintain my innocence in this case and feel any sort of
conviction, especially one involving any sort of theft based charge, would
work a terrible injustice and greatly damage my reputation and employment
prospects. I want a jury trial, too.
Sincerely,
Zach Coughlin
121 River Rock St.
Reno, NV 89501
775 338 8118
492
1 of 57 1/29/2012 9:44 PM
privilege.

Sent: Wed 11/16/11 3:35 PM
Ms. Roberts,
Thanks for your reply. Please ascertain from Walmart whether any Walmart
employees had, previous to this incident, made any threats respecting
maliciously having the accused banned from Walmart's incident to a
disagreement over Walmart staff and managers curious practice of
"forgetting" their return policy, despite some individuals having worked there
over 10 years....Further, I believe it relevant and part of your duty to provide
exculpatory information to ascertain whether the RSIC police officer made
statements wherein he attempted to coerce a consent to an impermissible
search and further buttressed his probable cause finding to conduct a search
incident to arrest, expressly, in words, to the accused, upon the accused's
failure to consent to such a search.
Please provide a list of any witnesses you intend to call at trial, including a
summation of the matters the will testify to, in addition to producing a copy
or making available for reproduction any documentation, audio, video, or
other materials intended to be used in any way at trial.
Thank You,
493
2 of 57 1/29/2012 9:44 PM
Date: Mon, 14 Nov 2011 10:36:45 -0800

case.
Date: Fri, 11 Nov 2011 01:40:53 -0800

sometime within about the last 10 days, I would say. I believe I attempted
to copy you on it, but have recently been evicted and its been a very
difficult time in terms of coordinating paperwork, etc., etc. I apologize for
any inconvenience this may have cause you. I am unsure of whether the
November 14th trial is still set to take place. I believe fairness dictates that
it be continued to a later date. I have request counsel but have yet to receive
any, or wait, I was denied a request to receive counsel because Judge
Howard said there is not a 6th amendment right to counsel where, even
though jail time is technically a possibility, the state does not anticipate
seeking jail time...or something like that, however, I found some cases that
say I should still get counsel appointed, especially where I show I am
indigent, and I believe I qualify as indigent rather easily. Can and would
you agree to a continuance? I believe I tried to contact about this prior to
filing my Request for a Continuance. I maintain my innocence in this case
494
3 of 57 1/29/2012 9:44 PM
and feel any sort of conviction, especially one involving any sort of theft
based charge, would work a terrible injustice and greatly damage my
reputation and employment prospects. I want a jury trial, too.
Sincerely,
Zach Coughlin
121 River Rock St.
Reno, NV 89501
775 338 8118

Sent: Wed 11/16/11 5:30 PM
Thanks Ms. Roberts,

Can you tell me who the three witnesses are that showed up on November
14th, 2011 for trial at 1pm? I did obtain a copy of the "discovery" about the
second day it was made available to me from your office in person. At that
time, no video evidence was made available to me. Is there now some video
or audio recording to which I may be provided access? Would you mind just
emailing me the names of the intended witnesses. Do you believe you do not
have a duty to make a reasonably diligent inquiry of either Walmart or RSIC
495
4 of 57 1/29/2012 9:44 PM
do assess the validity of the matters mentioned in my last email, ie the

retaliatory motive vis a vis Walmart and or the impermissible search/ 42 USC
Sec 1983 police misconduct of the RSIC officers?
Sincerely,
Zach Coughlin, Esq.

121 River Rock St.
Reno, NV 89501
775 338 8118
Licensed in Nevada
privilege.
Date: Wed, 16 Nov 2011 17:12:21 -0800

Roberts.
496
5 of 57 1/29/2012 9:44 PM
Date: Wed, 16 Nov 2011 15:35:48 -0800
Ms. Roberts,
Thanks for your reply. Please ascertain from Walmart whether any Walmart
employees had, previous to this incident, made any threats respecting
maliciously having the accused banned from Walmart's incident to a
disagreement over Walmart staff and managers curious practice of
"forgetting" their return policy, despite some individuals having worked
there over 10 years....Further, I believe it relevant and part of your duty to
provide exculpatory information to ascertain whether the RSIC police
officer made statements wherein he attempted to coerce a consent to an
impermissible search and further buttressed his probable cause finding to
conduct a search incident to arrest, expressly, in words, to the accused, upon
the accused's failure to consent to such a search.
summation of the matters the will testify to, in addition to producing a copy
or making available for reproduction any documentation, audio, video, or
other materials intended to be used in any way at trial.
Thank You,
Date: Mon, 14 Nov 2011 10:36:45 -0800

confirmation from the Court that your trial date has been continued, you will need to appear this afternoon at
1:00 pm in Courtroom B of the Reno Municipal Court. We can discuss your case further at that time and if we
a misdemeanor case.
497
6 of 57 1/29/2012 9:44 PM
Date: Fri, 11 Nov 2011 01:40:53 -0800

not totally sure that there is a duty to serve you on such a thing, but I filed
a Motion for Continuance and a Motion for Appointment of Counsel
November 14th trial is still set to take place. I believe fairness dictates
that it be continued to a later date. I have request counsel but have yet to
receive any, or wait, I was denied a request to receive counsel because
Judge Howard said there is not a 6th amendment right to counsel where,
even though jail time is technically a possibility, the state does not
anticipate seeking jail time...or something like that, however, I found some
cases that say I should still get counsel appointed, especially where I show
I am indigent, and I believe I qualify as indigent rather easily. Can and
would you agree to a continuance? I believe I tried to contact about this
prior to filing my Request for a Continuance. I maintain my innocence in
this case and feel any sort of conviction, especially one involving any sort
of theft based charge, would work a terrible injustice and greatly damage
my reputation and employment prospects. I want a jury trial, too.
Sincerely,
Zach Coughlin
121 River Rock St.
Reno, NV 89501
775 338 8118
498
7 of 57 1/29/2012 9:44 PM

Sent: Thu 11/17/11 3:37 PM
Dear Ms. Roberts,
Sincerely,
Zach

Sent: Mon 11/21/11 1:05 PM
Dear Ms. Roberts,

I wish to obtain a copy of the video and will go the your office's lobby
shortly hoping to be provided one. Please respond to me regarding my
request from a continuance.
Sincerely,
499
8 of 57 1/29/2012 9:44 PM
Zach Coughlin, Esq.

121 River Rock St.
Reno, NV 89501
775 338 8118
Licensed in Nevada
privilege.
Date: Thu, 17 Nov 2011 07:40:44 -0800

CC: colterp@reno.gov
may want to view it at the City Attorney's Office as the CD doesn't seem to work on everyone's computer. Penie
Colter will be able to assist you. I am not clear on what you think my duty is, but I know what my duty is and I
Date: Wed, 16 Nov 2011 17:30:36 -0800
Thanks Ms. Roberts,

14th, 2011 for trial at 1pm? I did obtain a copy of the "discovery" about the
second day it was made available to me from your office in person. At that
time, no video evidence was made available to me. Is there now some
500
9 of 57 1/29/2012 9:44 PM
video or audio recording to which I may be provided access? Would you

mind just emailing me the names of the intended witnesses. Do you believe
you do not have a duty to make a reasonably diligent inquiry of either
Walmart or RSIC do assess the validity of the matters mentioned in my last
email, ie the retaliatory motive vis a vis Walmart and or the impermissible
search/ 42 USC Sec 1983 police misconduct of the RSIC officers?
Sincerely,
Zach Coughlin, Esq.

121 River Rock St.
Reno, NV 89501
775 338 8118
Licensed in Nevada
Date: Wed, 16 Nov 2011 17:12:21 -0800

Roberts.
501
10 of 57 1/29/2012 9:44 PM
Date: Wed, 16 Nov 2011 15:35:48 -0800
Ms. Roberts,
Thanks for your reply. Please ascertain from Walmart whether any
Walmart employees had, previous to this incident, made any threats
respecting maliciously having the accused banned from Walmart's incident
to a disagreement over Walmart staff and managers curious practice of
"forgetting" their return policy, despite some individuals having worked
there over 10 years....Further, I believe it relevant and part of your duty to
provide exculpatory information to ascertain whether the RSIC police
officer made statements wherein he attempted to coerce a consent to an
impermissible search and further buttressed his probable cause finding to
conduct a search incident to arrest, expressly, in words, to the accused,
upon the accused's failure to consent to such a search.
summation of the matters the will testify to, in addition to producing a
copy or making available for reproduction any documentation, audio,
video, or other materials intended to be used in any way at trial.
Thank You,
Date: Mon, 14 Nov 2011 10:36:45 -0800

a misdemeanor case.
502
11 of 57 1/29/2012 9:44 PM
Date: Fri, 11 Nov 2011 01:40:53 -0800

I believe you are the prosecutor for the case against me, State v.
Coughlin, which I believe is still set for trial on November 14th, I think
at 1pm. I am not totally sure that there is a duty to serve you on such a
thing, but I filed a Motion for Continuance and a Motion for
Appointment of Counsel sometime within about the last 10 days, I would
say. I believe I attempted to copy you on it, but have recently been
evicted and its been a very difficult time in terms of coordinating
paperwork, etc., etc. I apologize for any inconvenience this may have
cause you. I am unsure of whether the November 14th trial is still set to
take place. I believe fairness dictates that it be continued to a later date.
I have request counsel but have yet to receive any, or wait, I was denied a
request to receive counsel because Judge Howard said there is not a 6th
amendment right to counsel where, even though jail time is technically a
possibility, the state does not anticipate seeking jail time...or something
like that, however, I found some cases that say I should still get counsel
appointed, especially where I show I am indigent, and I believe I qualify
as indigent rather easily. Can and would you agree to a continuance? I
believe I tried to contact about this prior to filing my Request for a
Continuance. I maintain my innocence in this case and feel any sort of
conviction, especially one involving any sort of theft based charge,
would work a terrible injustice and greatly damage my reputation and
employment prospects. I want a jury trial, too.
Sincerely,
Zach Coughlin
121 River Rock St.
Reno, NV 89501
775 338 8118
503
12 of 57 1/29/2012 9:44 PM

Sent: Mon 11/21/11 4:06 PM
Dear Judge Howard Deputy City Attorney Roberts,
I have been evicted and perhaps subject to an illegal lockout and unlawful
rent distraint by an attorney representing my Beverly Hills High School
graduate California Neurosurgeon landlord, who has spent approx $30,000 in
attorneys fees pursuing a summary eviction, and whose attorney is
withholding my state issued indentification, wallet, and all materials
necessary to my law practice all in an unlawful rent distraint prohibited by
NRS 40.460 and 40.520. I am pursuing a continuance of the upcoming
hearing/trial, I cannot even access when that hearing is. I have informed
opposing counsel Roberts of some of the issues which will require extensive
discovery, a jury trial, and more time to afford myself a legitimate
opportunity to defend this case. I have not been served any Order responding
to my request for appointment of counsel, as I believe it is required even if
the State does not "intend" to seek jail time, where any incarceration is a
possibility, the Sixth Amendment guarantees it.
504
13 of 57 1/29/2012 9:44 PM
Please note that my temporary address for now is:

Zach Coughlin, Esq.
c/o Silver Dollar Motel
817 N. Virginia St., Unit # 2
Reno, NV 89501
The opposing counsel in the summary eviction matter is withholding my

phone as well and refusing to allow me to access any mail that may remain at
the property from those times when the USPS was processing my official
Change of Address. Email is the best way to get in contact with me during
this transition period.
For instance, I am unware whether my Motion for Appointment of Counsel

was granted or not. I called Judge Howard's assistant and requested that she
email me the docket in this case and any pleadings or orders filed, including
any order that may have stemmed form any of my previous motions, as I am
not sure how those were ruled on. I believe my internet based fax service
will allow me to receive those materials at my number 949 667 7402, though
I would prefer email, but I know many governmental entities prefer to fax
such items. I am requesting a jury trial, a substantial continuance, and the
appointment of counsel. I object to the RMC's practice of refusing to tell
litigants who the 4 "house" appointed defenders are upon questioning.
Further, it has become clear that some of these "former prosecutors" who are
now the gang of four "house" defenders, do not even announce to accused
arraignees that they are, in fact, the defender or an attorney or that they may
be representing the arraignees. I am hereby filing a motion in limine
regarding any materials or information gleaned from the unlawful search by
the RSIC Officer, who clearly announced that they would base their probable
cause to arrest and conduct a search incident to arrest upon any failure to
consent to a search by the accused. Further, the alleged conduct did not
occur in the Officer's presence, and I believe there exists authority preventing
a minor misdemeanor arrest and transport under those circumstances.
Additionally, more time is needed to conduct discovery in this matter,
especially in light of allegations that Walmart had previously threatened
individuals, including, perhaps, the accused, with retaliatory action, including
illicit abuse of process, for the purported attempts by someone to have the
505
14 of 57 1/29/2012 9:44 PM
Walmart Return Policy enforced, and to hold accountable all Walmart

employees and managers, some of whom have over a decade experience in
their positions, who curiously "forget" they Return Policy Walmart holds out
to the public when it is convenient to do so, the same Return Policy that
Walmart used to drive out of business so many competitors. Further, this
case is likely to get extremely complicated given the apparent conflict of
interest stemming from the fact that the Walmart in question is on land
owned by the RSIC, which may own or employ the RSIC police, and which
is rented or owned in part by Walmart.
I know Opposing Counsel Roberts may appreciate a continuance as well and

the opportunity it would afford her to fulfill her NRCP 11 duty and other
prosecutorial duties to conduct a reasonably diligent inquiry into these
matters.
Sincerely,
Zach Coughlin
privilege.

Sent: Mon 11/21/11 7:18 PM
506
15 of 57 1/29/2012 9:44 PM
Zach Coughlin, Esq.

121 River Rock St.
Reno, NV 89501
775 338 8118
Licensed in Nevada
privilege.
Date: Mon, 14 Nov 2011 10:36:45 -0800

case.
507
16 of 57 1/29/2012 9:44 PM

Date: Fri, 11 Nov 2011 01:40:53 -0800

November 14th trial is still set to take place. I believe fairness dictates that
it be continued to a later date. I have request counsel but have yet to receive
any, or wait, I was denied a request to receive counsel because Judge
Howard said there is not a 6th amendment right to counsel where, even
though jail time is technically a possibility, the state does not anticipate
seeking jail time...or something like that, however, I found some cases that
say I should still get counsel appointed, especially where I show I am
indigent, and I believe I qualify as indigent rather easily. Can and would
you agree to a continuance? I believe I tried to contact about this prior to
filing my Request for a Continuance. I maintain my innocence in this case
and feel any sort of conviction, especially one involving any sort of theft
based charge, would work a terrible injustice and greatly damage my
reputation and employment prospects. I want a jury trial, too.
Sincerely,
Zach Coughlin
121 River Rock St.
Reno, NV 89501
775 338 8118
508
17 of 57 1/29/2012 9:44 PM

Sent: Mon 11/21/11 8:40 PM
Hi Ms. Roberts,
Sorry, don't mean to be a pain, but I DON'T AGREE to this Verint software
policy...its calls for allowign them to inspect my office and paying them for
their inspection fees and all this other stuff that is so unduly oppressive. Its
just an AVI file, its as though they disable it just for the purpose of preventing
you from watching the movie unless you agree to their oppressive, onerous,
contract terms, and how does this benefit taxpayers? Authentication issues
can be addressed through the traditional means, I don't see the value add.
Sincerely,
Zach Coughlin, Esq.

121 River Rock St.
Reno, NV 89501
775 338 8118
Licensed in Nevada
509
18 of 57 1/29/2012 9:44 PM
privilege.

Sent: Tue 11/29/11 1:33 PM
Dear Ms. Roberts,
contact person at your office "doesn't show anything", I am not sure, and whether that is violative of your duties
have been informed that the RSIC officer committed police misconduct and yet you brazenly announce in writing
that you do not intend to follow up on that, nor do you feel compelled to.
Zach Coughlin, Esq.

Reno, NV 89501
tel: 775 338 8118
fax: 949 667 7402
510
19 of 57 1/29/2012 9:44 PM
privilege.
Date: Tue, 22 Nov 2011 07:59:37 -0800

Dear Mr. Coughlin, you will need to file a motion to continue in compliance with Reno Municipal Court
procedures. As I have stated in a previous email, I do not object to your motion to continue, however, it is up
Date: Mon, 21 Nov 2011 13:05:28 -0800
Dear Ms. Roberts,

I wish to obtain a copy of the video and will go the your office's lobby
shortly hoping to be provided one. Please respond to me regarding my
request from a continuance.
Sincerely,
Zach Coughlin, Esq.

121 River Rock St.
511
20 of 57 1/29/2012 9:44 PM
Reno, NV 89501
775 338 8118
Licensed in Nevada
Date: Thu, 17 Nov 2011 07:40:44 -0800

Date: Wed, 16 Nov 2011 17:30:36 -0800
Thanks Ms. Roberts,

14th, 2011 for trial at 1pm? I did obtain a copy of the "discovery" about
the second day it was made available to me from your office in person. At
that time, no video evidence was made available to me. Is there now some
video or audio recording to which I may be provided access? Would you
512
21 of 57 1/29/2012 9:44 PM
mind just emailing me the names of the intended witnesses. Do you

believe you do not have a duty to make a reasonably diligent inquiry of
either Walmart or RSIC do assess the validity of the matters mentioned in
my last email, ie the retaliatory motive vis a vis Walmart and or the
impermissible search/ 42 USC Sec 1983 police misconduct of the RSIC
officers?
Sincerely,
Zach Coughlin, Esq.

121 River Rock St.
Reno, NV 89501
775 338 8118
Licensed in Nevada
Date: Wed, 16 Nov 2011 17:12:21 -0800

for reciprocal discovery. You just need to call ahead at 334-2050 and arrange to pick it up. You are entitled
to copies of all the reports and witness statements and video we may have on this case. Since I am not
calling any additional witnesses that are not already mentioned in the reports/statements, I am not
or interviews. Pam Roberts.
513
22 of 57 1/29/2012 9:44 PM
Date: Wed, 16 Nov 2011 15:35:48 -0800
Ms. Roberts,
Thanks for your reply. Please ascertain from Walmart whether any
Walmart employees had, previous to this incident, made any threats
respecting maliciously having the accused banned from Walmart's
incident to a disagreement over Walmart staff and managers curious
practice of "forgetting" their return policy, despite some individuals
having worked there over 10 years....Further, I believe it relevant and
part of your duty to provide exculpatory information to ascertain whether
the RSIC police officer made statements wherein he attempted to coerce
a consent to an impermissible search and further buttressed his probable
cause finding to conduct a search incident to arrest, expressly, in words,
to the accused, upon the accused's failure to consent to such a search.
Please provide a list of any witnesses you intend to call at trial, including
a summation of the matters the will testify to, in addition to producing a
copy or making available for reproduction any documentation, audio,
video, or other materials intended to be used in any way at trial.
Thank You,
Date: Mon, 14 Nov 2011 10:36:45 -0800

confirmation from the Court that your trial date has been continued, you will need to appear this
afternoon at 1:00 pm in Courtroom B of the Reno Municipal Court. We can discuss your case further at
that time and if we are unable to resolve the case, you can ask the Court again for a continuance and I
It is also the Court's decision whether to appoint you a legal defender. I do not plan to ask for jail time,
so the Court is not required to appoint you an attorney. In addition, you have no right to a jury trial in
a misdemeanor case.
514
23 of 57 1/29/2012 9:44 PM
Date: Fri, 11 Nov 2011 01:40:53 -0800

I believe you are the prosecutor for the case against me, State v.
Coughlin, which I believe is still set for trial on November 14th, I think
at 1pm. I am not totally sure that there is a duty to serve you on such a
thing, but I filed a Motion for Continuance and a Motion for
Appointment of Counsel sometime within about the last 10 days, I
would say. I believe I attempted to copy you on it, but have recently
been evicted and its been a very difficult time in terms of coordinating
paperwork, etc., etc. I apologize for any inconvenience this may have
cause you. I am unsure of whether the November 14th trial is still set to
take place. I believe fairness dictates that it be continued to a later
date. I have request counsel but have yet to receive any, or wait, I was
denied a request to receive counsel because Judge Howard said there is
not a 6th amendment right to counsel where, even though jail time is
technically a possibility, the state does not anticipate seeking jail
time...or something like that, however, I found some cases that say I
should still get counsel appointed, especially where I show I am
indigent, and I believe I qualify as indigent rather easily. Can and
would you agree to a continuance? I believe I tried to contact about this
prior to filing my Request for a Continuance. I maintain my innocence
in this case and feel any sort of conviction, especially one involving any
sort of theft based charge, would work a terrible injustice and greatly
damage my reputation and employment prospects. I want a jury trial,
too.
Sincerely,
Zach Coughlin
121 River Rock St.
Reno, NV 89501
515
24 of 57 1/29/2012 9:44 PM
775 338 8118

Sent: Tue 11/29/11 3:14 PM
1 attachment

Zach Coughlin, Esq.

Reno, NV 89501
tel: 775 338 8118
fax: 949 667 7402
516
25 of 57 1/29/2012 9:44 PM
privilege.
Date: Tue, 22 Nov 2011 17:22:45 -0800
Dear Judge Howard,
My apologies Your Honor. I have had an unlawful rent distraint applied to all
my office equipment and the files necessary to defend this case and produce
motions, incident to a summary eviction stemming from a lease that was at
least in part commercial, had a rent escrow deposit forced upon me in
violation of Nevada Law, had all my computers printers, everything subject
to the distraint. I have a netbook it won't accept a printer and on and on. I
apologize. I do note that the RMC rules allow for filing by facsimile, though
I gather not to the fax number listed for yoru chambers at www.nvbar.org.
Sincerely,
Zach Coughlin,
6:49 mark
Sent: Sun 12/04/11 3:37 AM
517
26 of 57 1/29/2012 9:44 PM
I want you to move for a Rule 59 Motion to Set Aside or some other motion
to have the Judgment Set Aside. Your cop witness clearly had a driver's
license produced to him at the 6:49 mark of YOUR OWN DAMN VIDEO!
the prosecutorial codes you are held to and NRCP 11. Furher, what are you
going to say when the UPC from the alleged receipt appears on the purchased
receipt, in combination with Frontino's adamant assertion that they wouldn't,
in combination with the same from Crawford, in combination with Frontino
cashier, in combination with the "same UPC, hit the quanity number" practice
common at Walmart? Further, your own witness admitted on tape at the trial
that "he didn't have enough EVIDENCE to issue a citation so he arrested and
did a search incident to arrest" before you and Judge Howard could jump in
and cut him off. That's gametime. I will avalanche you with motion and
lawsuits if you don't fix this defamation you funded and supported, what with
you little 30 minutes witness coaching session that kept all the other litigants
waiting from 1:00 to 1:30 while you called in Frontino, Crawford, and
Braunworth. Wait till I get the video from Walmart that Frontino is hiding
from you, and don't you just want to know if some audio exists of the
interrogation.
Sincerely,
Zach Coughlin, Esq.

Reno, NV 89501
tel: 775 338 8118
fax: 949 667 7402
518
27 of 57 1/29/2012 9:44 PM
privilege.
6:49 mark
Sent: Sun 12/04/11 3:45 AM
"information" to issue a citation, and how, because they didn't, they had to
conduct a search incident to arrest, yet YOUR OWN DAMN VIDEO, THAT
YOU EFFING PRODUCED! SHOWS THE ACCUSED HANDING THEM
A DRIVERS LICENSE AND THEM CALLING IT IN TO CHECK FOR
PRIORS (THAT WILL SHOW UP IN DISPATCH REPORTS AND OTHER
DEFAMED ME AND YOU SPONSORED IT, CULTIVATED IT, AND
SMUGLY TALK SMACK TO ME IN COURT ABOUT MY NEEDING TO
USE THE BATHROOM AND HOW YOU HAVE "HAD TWO KIDS AND
CAN HOLD MY BLADDER" GENDER SEXUAL HARRASSMENT. I
GET EVICTED (WRONGLY, COMMERCIAL LEASES PRECLUDE
SUMMARY EVICTION WHERE NO CAUSE EVICTION NOTICES ARE
ALL THAT IS SERVED) BY THE RICHARD G. HILL GANGBANG
EXPRESS, WHILE BEING ASSAULTED BY NEVADA COURT
SERVICES, WHICH LISTS MY COURT APPOINTED ATTORNEY LEW
TAITEL AS "ASSOCIATED WITH" ON THE NEVADA COURT
SERVICES WEB SITE, LEW AGREES TO A CONTINUANCE OF THE
TRESPASS TRIAL BECAUSE RICHARD HILL NEEDS TO GO ON A
VACATION, BUT I CAN'T GET A FUCKING CONTINUANCE WHERE
RICHARD HILL IS APPLYING AN UNLAWFUL RENT DISTRAINT TO
MY EVIDENCE TO DEFEND AGAINST THIS BULLSHIT FUCKING
519
28 of 57 1/29/2012 9:44 PM
WALMART FIASCO! THEN AFTER TAITEL AGRESS TO A

CONTINUANCE, ONLY THEN AFTER REVIEWING MY PERSONAL
FILE, HE FIGURES OUT I AM SUING HIM, OR AT LEAST NEVADA
COURTS SERVICES. SOMEBODY PUT A NICE COLLECTION OF
VIDEOS UP ON YOUTUBE ABOUT IT, SOME CRAZY
DOCUMENTARY FILMMAKER. YOU OUGHT TO BE ASHAMED.
I CAN GIVE YOU UNTIL TUESDAY, AFTER THAT, I HAVE TO MAKE

MY MOVES AND FILE MY MOTIONS.
Zach Coughlin, Esq.

Reno, NV 89501
tel: 775 338 8118
fax: 949 667 7402
privilege.
Date: Sun, 4 Dec 2011 03:37:24 -0800
I want you to move for a Rule 59 Motion to Set Aside or some other motion
to have the Judgment Set Aside. Your cop witness clearly had a driver's
license produced to him at the 6:49 mark of YOUR OWN DAMN VIDEO!
520
29 of 57 1/29/2012 9:44 PM
the prosecutorial codes you are held to and NRCP 11. Furher, what are you
going to say when the UPC from the alleged receipt appears on the purchased
receipt, in combination with Frontino's adamant assertion that they wouldn't,
in combination with the same from Crawford, in combination with Frontino
cashier, in combination with the "same UPC, hit the quanity number" practice
common at Walmart? Further, your own witness admitted on tape at the trial
that "he didn't have enough EVIDENCE to issue a citation so he arrested and
did a search incident to arrest" before you and Judge Howard could jump in
and cut him off. That's gametime. I will avalanche you with motion and
lawsuits if you don't fix this defamation you funded and supported, what with
you little 30 minutes witness coaching session that kept all the other litigants
waiting from 1:00 to 1:30 while you called in Frontino, Crawford, and
Braunworth. Wait till I get the video from Walmart that Frontino is hiding
from you, and don't you just want to know if some audio exists of the
interrogation.
Sincerely,
Zach Coughlin, Esq.

Reno, NV 89501
tel: 775 338 8118
fax: 949 667 7402
521
30 of 57 1/29/2012 9:44 PM
privilege.
6:49 mark
Sent: Sun 12/04/11 4:05 AM

"information" (their definition included personally identifiable information to
identify the accused sufficiently to issue a citation, A CURRENT NEVADA'S
DRIVERS LICENSE WOULD DO JUST FINE ON THAT ACCOUNT) to
issue a citation, and how, because they didn't, they had to conduct a search
incident to arrest, yet YOUR OWN DAMN VIDEO (OR RATHER,
WALMART'S, BUT ITS HARD TO SEE WHERE YOU GUYS END AND
WALMART BEGINS), THAT YOU EFFING PRODUCED (OR RATHER
THE RENO CITY ATTORNEY PRODUCED AFTER THE BOYS AT
WALMART "COMPILED" VIDEO, WHICH CURIOUSLY DID CONTAIN
A FUCKING SECOND OF VIDEO SHOWING ANY OF THE ALLEGED
CONCEALING OR CONSUMING THE ITEMS IN QUESTION! SHOWS
THE ACCUSED HANDING THEM A DRIVERS LICENSE AND THEM
CALLING IT IN TO CHECK FOR PRIORS (THAT WILL SHOW UP IN
DISPATCH REPORTS AND OTHER DOCUMENTATION). THESE
KEYSTONE COP EFFUPS HAVE DEFAMED ME AND YOU
SPONSORED IT, CULTIVATED IT.
I CAN GIVE YOU UNTIL TUESDAY TO MAKE A STRONG EFFORT TO
CORRECT THIS, AFTER THAT, I HAVE TO MAKE MY MOVES AND
FILE MY MOTIONS. JUDGE VAN WALRAVEN WOULD BE
522
31 of 57 1/29/2012 9:44 PM


say when the UPC from the alleged receipt appears on the purchased receipt,
in combination with Frontino's adamant assertion that they wouldn't, in
combination with the same from Crawford, in combination with Frontino
cashier, in combination with the "same UPC, hit the quantity number"
practice common at Walmart? Further, your Officer Crawford, as a witness,
admitted on tape at the trial that "he didn't have enough EVIDENCE to issue
a citation so he arrested and did a search incident to arrest" to get more
evidence before Reno City Attorney Roberts and Judge Howard could jump
in and cut him off. That's gametime. Frontino, Crawford, and Braunworth,
sat around joking like goofy frat boys the preceeding 30 minutes in the
hallway in front of the court room, like a group of 3 buddies who hang out all
the time, except, 2 get paid by you, and one gets paid by Wal-Mart, who pay
the people who pay you. Then all three of them wait around the hear the
verdict at 8 pm hours after Frontino and Crawford finished testifying.
Maybe the don't realize Judge Howard wasn't ruling on the Appeal, the Rule
59, 60 motions, Motion for Reconsideration, defamation, wrongful arrest,
false imprisonment lawsuits, etc. Fix it now while you can. Wait till I get the
video from Walmart that Frontino is hiding from you, and don't you just want
to know if some "other" audio or video exists of the interrogation.
Sincerely,
Zach Coughlin, Esq.

Reno, NV 89501
tel: 775 338 8118
fax: 949 667 7402
523
32 of 57 1/29/2012 9:44 PM
privilege.
discovery request;
Sent: Wed 12/07/11 1:16 AM
Dear Ms. Roberts,
In the discovery you provided in this matter there is a fax from the RSIC to
you that has a fax heading for what appears to be "page 1" followed by pages
without that heading...then a heading with "page 4" etc... I want the entire
contents of anything provided by the RSIC and Walmart to you or anyone
connected with the Reno City Attorney or the Reno Municipal Court.
Further, I want all media provided by Walmart, and I question why you
needed 45 minutes with the three witness who testified at the November 30th,
2011 trial, from 1pm to 1:45pm. Additionally, you are hereby served a
NRCP 11 motion requiring you to correct the perjury you suborned in court
with respect to the patently contradictory testimony of Officer Crawford vis a
vis the video evidence you yourself provided in discovery.
Further, I spoke with Mr. Hazlett-Stevens shortly after the September 9, 2011
arrest in this matter demanding a copy of all documentation or discovery that
I had any right to. I was told I would not have any opportunity to review
such materials prior to the arraignment, which was not set for a full 30 days
524
33 of 57 1/29/2012 9:44 PM
out from the arrest. Do I not have a right to a copy of the pc sheet, arrest
report, and witness statements within 48 hours of the arrest? The fax to your
office from the RSIC is dated 9/12/2011, yet my written demands and
requests for such discovery and documentation were met with refusals to
provide such materials, and, in some case, claims that your office did not
even have such materials and would not get them until after the arraignment.
Further, I spoke with and provided written requests to RSIC Sargent
Avansino within 2 days after the arrest and he refused to provide the
materials, as did the Reno Municipal Court. Please alert the court to any
wrongdoing on your's or the Reno City Attorney or the RSIC part in this
regard in prejudicing my ability to defend my case by delaying the
production of essential discovery, then refusing to agree to a continuance at
trial, after earlier providing a written agreement to such a continuance.
Sincerely,
Zach Coughlin, Esq.

Reno, NV 89501
tel: 775 338 8118
fax: 949 667 7402
privilege.
525
34 of 57 1/29/2012 9:44 PM

Sent: Thu 12/08/11 3:44 PM
Mr. Hazlett-Stevens,
We did definately talk on the phone regarding the matter to which I do not
have representation, the RSIC arrest case 11 DR 22176 2I for which Deputy
City Attorney Pam Roberts is the prosecutor. I was denied my Sixth
Amendment right to court appointed defense counsel in that matter, and
represented myself. As such, there is no rule precluded you from
communicating with me about 11 DR 22176 2I. You did speak with me
about that. I called you within a couple days of the September 9th, 2011
arrest in that matter describing my exigent desire to obtain a copy of the
discovery. I was transferred to you and we spoke at length about it, you
describing why you could not give it to me. Is it your contention that your
office or the State does not have a duty to provide the defendant a copy of
certain pieces of discovery within 48 hours of arrest?
Regarding the matter for which Mr. Puentes took the baton from Mr. Taitel, is
it clear to you how Mr. Taitel was somehow, apparently, able to assent to a
continuance, only to, apparently, find some need to pass the baton to Mr.
Puentes very, very shortly thereafter? Why did Mr. Taitel's status as attorney
of record change? Was it due to a conflict? Why didn't that conflict prevent
Mr. Taitel from abstaining from assenting to the continuance in the trespass
case, which was scheduled for trial December 13, 2011?
Sincerely,
Zach Coughlin, Esq.

Reno, NV 89501
tel: 775 338 8118
526
35 of 57 1/29/2012 9:44 PM
fax: 949 667 7402

privilege.
Date: Wed, 7 Dec 2011 07:34:25 -0800

Subject: Re: your failure to propound discovery
your attorney, Roberto Puentes, contact me with any discovery issues or issues regarding the City's Motion to
aware that I cannot communicate with a you as a represented party. Do not contact me without your counsel.
Thank you,
Chris
City of Reno
Tel: 326-6628
Fax: 334-4226
527
36 of 57 1/29/2012 9:44 PM
Date: Wed, 7 Dec 2011 01:48:03 -0800
Subject: your failure to propound discovery
Dear Mr. Hazlett-Stevens,
I am writing to request a copy of any and all discovery, pleadings, documentation,

and after I procure another attorney. I did not agree to the continuance you sought, nor
was I informed you were seeking it. I find it particularly troubling that a continuance was
COMPLAINTS I HAVE AGAINST YOU AND YOUR OFFICE'S HANDLING
THE RMC OR MS. ROBERTS, PERHAPS SHE WAS TOO BUSY ALLEGEDLY
In the discovery your office provided in the petit larceny matter Ms. Roberts prosecuted
against me there is a fax from the RSIC to you that has a fax heading for what appears to
connected with the Reno City Attorney or the Reno Municipal Court. Further, I want all
witness who testified at the November 30th, 2011 trial, from 1pm to 1:45pm.
Further, I spoke with you, Mr. Hazlett-Stevens, shortly after the September 9, 2011 arrest
in this matter demanding a copy of all documentation or discovery that I had any right to.
I was told I would not have any opportunity to review such materials prior to the
arraignment, which was not set for a full 30 days out from the arrest. Do I not have a
528
37 of 57 1/29/2012 9:44 PM
arrest? The fax to your office from the RSIC is dated 9/12/2011, yet my written demands
and requests for such discovery and documentation were met with refusals to provide such
would not get them until after the arraignment. Further, I spoke with and provided written
on your's or the Reno City Attorney or the RSIC part in this regard in prejudicing my
continuance.
Sincerely,
Zach Coughlin, Esq.

Reno, NV 89501
tel: 775 338 8118
fax: 949 667 7402
Here is service of the Motion for a New Trial, Set Aside, Va

Sent: Mon 12/12/11 9:52 PM
To: hazlett-stevensc@reno.gov; robertsp@reno.gov; kadlicj@reno.gov
529
38 of 57 1/29/2012 9:44 PM
Is it about time for you to get that CD/DVD that Walmar'ts AP guy Faustino
handed the two Reno Sparks Indian Colony officers when they were leading
the suspect away in cuffs...not the video you gave me of sling blade
badgering the lawyer I got those two videos you gave me which just the
badgering in the interrogation room. I am talking about the cd/dvd that
Walmart's guy gave them as they were walking out....Doesn't it seem like you
really need to get that now, to stay on the right side of Nifong? You
remember Nifong, don't you. Walmart ap guy sit there on the stand, under
penalty of perjury and testify that no video was collected in any way related
to me or this case aside from the 2 interrogation room videos you provided
(with a highly suspect 14mb "codec" program required to view the
videos....can you indicate why that is necessary to watch a simple old .avi
file?).
why did you suborn the perjury of both the walmart guy and the officers
regarding no other video existing? I can't figure that one out. Ms. Roberts,
don't you practice in RMC quite a bit? Maybe I am confused, but doesn't the
RMC rules permit serving a government attorney such as yourself via email?
What do you have against email? It is economical for those of use who don't
have such public largesse to work with. Here is service of the Motion for a
New Trial, Set Aside, Vacate, etc., etc:
https://skydrive.live.com/redir.aspx?cid=43084638f32f5f28&resid=43084638F32F5F28!1031&parid=root
Zach Coughlin, Esq.

Reno, NV 89501
tel: 775 338 8118
fax: 949 667 7402
530
39 of 57 1/29/2012 9:44 PM
privilege.
Date: Mon,
FW: records request

Sent: Tue 12/13/11 4:02 PM
2 attachments
RECORD_REQUEST_FORM walmart RMC 11 CR 22176 IC 110627 trial cd and orders to RMC 12 8 11
signed.pdf (453.4 KB) , RECORD_REQUEST_FORM_2010[1] rmc trespass 11 13 11 records request 11 CR
22185 City of Reno v Coughlin signed.pdf (510.9 KB)
Zach Coughlin, Esq.

Reno, NV 89501
tel: 775 338 8118
fax: 949 667 7402
privilege.
531
40 of 57 1/29/2012 9:44 PM
To: renomunirecords@reno.gov; fiskm@reno.gov
Subject: records request
Date: Tue, 13 Dec 2011 16:02:02 -0800
fax number 949 667 7402
Dear Mr. Fisk,

I really need a copy of the audio of the Trial in 11 CR 22176 and a copy of
both the Contempt Order and the Guilty Verdict (Veronica said she would fax
one and that the RMC never sent or served me a paper copy beyond shoving
some papers in my fax when I was being handcuffed then taking them away
from me separately in a huff when I stated that I might like to know what it
was I was to sign or read it (or 6th Amendment, etc). However, I have
received no fax of those Orders as Veronica said she would send me
yesterday. She said it in an angry unprofessional tone and I am hereby
complaining in writing about that and Marshall Monte's angry threatening
tone and language to me at the arraingment of October 11, 2011. Please
place a copy of this in their personnel files and the record in both of my CR
RMC cases.
I was told by a RMC filing office counter clerk yesterday that I was not
allowed to get a copy of the audio of my 11 30, 2011 hearing before Judge
Howard, that I would only be able to get a transcript after using the one
transcriptionist the RMC approves of and after paying her a substantial
amount of money up front, but that ultimately, the audio would never be
made available to me.
Is this the case? Please respond in writing or email me a copy of the audio
files and the pdf's or whatever file type the Contempt Order and Guilty
Verdict etc, in 11 CR 22176 are in, in addition please provide the Motion to
Withdraw and Notice of appearance in 11 CR 22185 by Taitel and then
Puentes. I sent you the video exhibits with the same mysterious Verint codec
that the RMC provided me. Why a simple .avi file needs some mysterious
532
41 of 57 1/29/2012 9:44 PM
codec that is about 13mb in size is truly a mystery to me.
12 11 11 Defendants Motion for New Trial, Set Aside, Vacate Judgment/Conviction of underlying crime and
Contempt in Court's Presence finding/ IFP Petition/ Motion for Reconsideration/Notice of Appeal, Case Statment
in case: city of reno v coughlin RMC 11 CR 22176; Records Request form Defendant and Request for
Transcription at Public's Expense and Request for a copy of the audio recording of the Trial of 11 30, 2011 1:45
pm to end in RMC 11 CR 22176.
Additionally, I never received service of any Notice of Appearance nor a Motion to Withdraw by Lew Taitel, Esq.
the attorney appointed to represent me as required by RMCR Rule 3: Authorization to Represent
the motion or set a hearing."
Further, RMCR state: "Rule 5: Motions by Facsimile

telephone number.
granted."
fax number 949 667 7402
533
42 of 57 1/29/2012 9:44 PM
And: "Rule 9: Appeals to District Court

the date that judgment is rendered."
Judge Howard informed me during his oral pronounce of his Contempt Order and Guilty Verdict on 11 30,2011
that he would afford me an additional 3 non judicial days to file a Notice of Appeal or any other Motion, Request
for Reconsideration, or other Motion seeking relief from his 11 30 2011 rulings on account of his sua sponte, with
no possibility of Stay or prior judicial review ordering his Marshalls to slam be into handcuffs and throw me into
Jail, kind of like in Houston v. 8th Judicial District Court, escept Judge Howard didn't cool down like Judge
Pomeranz did and Houston wasn't defending a criminal charge that carred a possibility of incarceration of
substantial length after being denied his 6th Amendment Right to Counsel. I am formally complaining about
Judge Howard;s conduct in that regard, please place a copy of this in his personnel file and let me know whether
you think a Complaint to the Judicial Discipline Commission would be appropriate, in your professional opinion.
I filed my Notice of Appeal in 11 cr 22176 yesterday with the RMC via email, as previously given permission to do
by the RMC. To the extent that was ineffective, let this writing act as a Notice of Appeal and agreement to pay
all charges required for such.
PROOF OF SERVICE:
I emailed a copy of this to Pam Roberts for the Plaintiff City of Reno on this date, a true and correct copy and
further email her a copy of all the 12 11 11 MOtion for New Trial, etc. yesterday to:
Pamela G Roberts
Company: Reno City Attorney's Office - Criminal Divison

Address: P.O. Box 1900
Reno
, NV
89505
Fax number: 775-334-2420
Sincerely,
Zach Coughlin, Esq.

Reno, NV 89501
fax: 949 667 7402
534
43 of 57 1/29/2012 9:44 PM
privilege.
RMC 11 CR 22176
Sent: Thu 12/15/11 11:59 PM
Zach Coughlin, Esq.
Reno, NV 89501
tel: 775 229-6737
fax: 949 667 7402
Nevada Bar No: 9473
FAX COVER SHEET
535
44 of 57 1/29/2012 9:44 PM
TO: .RMC et al
Dear RMC,
T
Sincerely,
Zach Coughlin, Esq.
Reno, NV 89501
536
45 of 57 1/29/2012 9:44 PM
tel: 775 229-6737
fax: 949 667 7402
Nevada Bar No: 9473
privilege.
FW: RMC 11 CR 22176

Sent: Fri 12/16/11 12:00 AM
1 attachment
Zach Coughlin, Esq.
Reno, NV 89501
tel: 775 229-6737
fax: 949 667 7402

537
46 of 57 1/29/2012 9:44 PM
Nevada Bar No: 9473
privilege.
lopezv@reno.gov
Date: Thu, 15 Dec 2011 23:59:45 -0800
Zach Coughlin, Esq.
Reno, NV 89501
tel: 775 229-6737
fax: 949 667 7402
Nevada Bar No: 9473
538
47 of 57 1/29/2012 9:44 PM
FAX COVER SHEET
TO: .RMC et al
Dear RMC,
539
48 of 57 1/29/2012 9:44 PM
T
Sincerely,
Zach Coughlin, Esq.
Reno, NV 89501
tel: 775 229-6737
fax: 949 667 7402
Nevada Bar No: 9473
privilege.
emergency filings
Sent: Fri 12/16/11 7:55 AM
2 attachments
12 16 11 emergency filing with fax cover sheet rmc 11 cr 22176.pdf (330.0 KB) , fax cover sheet and
notice of denial of service clarification motion.pdf (202.1 KB)
540
49 of 57 1/29/2012 9:44 PM
Zach Coughlin, Esq.
Reno, NV 89501
tel: 775 229-6737
fax: 949 667 7402
Nevada Bar No: 9473
privilege.
FW: 121 River Rock

Sent: Sat 12/17/11 12:15 AM
541
50 of 57 1/29/2012 9:44 PM
Zach Coughlin, Esq.
Reno, NV 89501
tel: 775 229-6737
fax: 949 667 7402
Nevada Bar No: 9473
privilege.
Date: Wed, 14 Dec 2011 15:43:38 -0800
Dear Mr. Baker,
542
51 of 57 1/29/2012 9:44 PM
Sincerely,
Zach Coughlin, Esq.
Reno, NV 89501
fax: 949 667 7402
Nevada Bar No: 9473
privilege.
Date: Wed, 14 Dec 2011 13:50:02 -0800
Mr. Coughlin:
543
52 of 57 1/29/2012 9:44 PM
652 Forest Street
Reno, Nevada 89509
Phone: (775) 348-0888
Fax: (775) 348-0858

Sent: Mon 12/19/11 5:15 PM
1 attachment
RMC 11 CR 22176 12 19 11 filing with 3 exhibits.pdf (9.1 MB)
544
53 of 57 1/29/2012 9:44 PM
Zach Coughlin, Esq.
Reno, NV 89501
tel: 775 229-6737
fax: 949 667 7402
Nevada Bar No: 9473
privilege.
no reply from Transcriptionist

Sent: Wed 12/21/11 12:02 AM
Zach Coughlin, Esq.
Reno, NV 89501
545
54 of 57 1/29/2012 9:44 PM
tel: 775 229-6737
fax: 949 667 7402
Nevada Bar No: 9473
Dear RMC,
It is my understanding the Judge Howard's order regarding email does not extend to the
address to which I am sending this correspondence: renomunirecords@reno.gov which is
the email address filing office supervisor Donna Ballard indicated to me was acceptable for
sending correspondence and filings to the RMC in lieu of faxes. I am writing because the
email address I was provided for RMC "official transcriptionist" Pam Longoni yielded a
"return to sender/failed transmission" message when I wrote to the email address provided
for her: plongoni@charter.net. Further, please see the forwarded email below that I sent to
Ms. Longoni. I have not received a return call from her regarding my recent messages to
her. I was told by a RMC filing office counter employee that I must get the transcript
through Ms. Longoni, as she is the "official transcriptionist" for the RMC. Please confirm
that I am no able to have another certified court reporter or transcriptionist create the
official transcript and indicate by what date this must be done, how it must be done, etc.
I was told by RMC filing office staff, including Ms. Ballard, that the RMC would not accept
any filings fees, bonds, or any other payments from me in relation to the underlying case 11
CR22176 2I or the appeal of that matter given that the RMC was holding the bail money I
paid into the court. If this is not the case or if I must pay anything into the RMC to ensure
that my appeal goes forward, please indicate as much in writing and with particularity. If I
am able to use any other transcriptionists and or the RMC has a list of such with contact
information, please provide such in writing.
Sincerely,
/s/Zach Coughlin
Zach Coughlin, Defendant/Appellant
546
55 of 57 1/29/2012 9:44 PM
privilege.
Subject: where to pay and how much
Date: Fri, 16 Dec 2011 22:44:37 -0800
Dear Ms. Longoni,

I have left you several messages. I wish to pay whatever it is I have to pay to get this
appeal transcript going and to preserve all my rights to review of the decision in RMC 11 cr
22176. Further, I would like a copy of the audio from the hearing as soon as possible.
Please provide specific detailed instructions as to how to pay and how much and anything
else I need to do.
Sincerely,
Zach Coughlin, Esq.
Reno, NV 89501
tel: 775 229-6737
fax: 949 667 7402
Nevada Bar No: 9473
547
56 of 57 1/29/2012 9:44 PM
privilege.
548
57 of 57 1/29/2012 9:44 PM
FILED
Electronically
01-30-2012:04:48:12 PM
Clerk of the Court
EXHIBIT #2
EXHIBIT #2
549
1 Document Code: 1520
Zach Coughlin, Esq.
3
1422 E. 9th St. #2
Reno, NV 89512
4 Tele: 775-338-8118
Fax: 949-667-7402
6
Attorney for Appellant Zach Coughlin

9
ZACH COUGHLIN; )
10 )
Appellant, ) CASE NO: CR11-2064
11 )
vs. ) DEPT. NO: 10
12
)
13 )
CITY OF RENO )
14 )
Respondents. )
15
)
16
17
18 DECLARATION OF ZACHARY BARKER COUGHLIN, ESQ.
19 ZACHARY BARKER COUGHLIN, ESQ., being first duly sworn, deposes and under penalty
20
of perjury avers:
21
1. I am a resident of the City of Reno, County of Washoe, State of Nevada, and over 18 years
22
of age. This declaration is based on my personal knowledge, except those matters stated on
23
24 information and belief, and as to those items I believe them to be true. This declaration is made in
25 support of Appellant's Opposition to Motion to Dismiss Appeal, and represents my testimony if

26
called on to present same in court.
27
28
- 1
550
1 2. I am an attorney duly licensed as such by the State of Nevada to practice before all courts
2 of this State and before the United States Patent and Trademark Office, and the United States
3
Bankruptcy Court for the District of Nevada.
4
3. My office represents the Appellant, Zach Coughlin, in this matter.
5
6
4. My office was never properly served with the instant motion by mail or hand-delivery. Cf.,
7 NRCP 5.
8 5. I wrote to the Reno Municipal Court at the email address listed for correspondence on their
9
website: renomunirecords@reno.gov in addition to emailing back and forth with and speaking on
10
the phone with Reno Municipal Court "Senior Court Specialist" Donna Ballard, whom identified
11
herself to me on several occasions as the Filing Officer Supervisor, as did several other RMC filing
12
13 officer personnel. Ms. Ballard gave me permission to file papers and pleadings in the RMC via
14 email to the following address: RenoMuniRecords@reno.gov. Ms. Ballard assured me that this was
15
appreciated given that faxes did not come through as clearly and that longer filings would
16
unnecessarily tax their fax machines. Ballard indicated that the filings I emailed to her and the
17
RMC would be printed out and included in the Record on Appeal should an Appeal be necessary or
18
19 pursued. However, given the primacy of a Notice of Appeal (even where, as here, there was a
20 timely filed tolling motion), I worried that the RMC would suddenly somehow try to assert that the
21
filings I emailed to the authorized RMC email address would not be accepted, and, therefore, on at
22
least one occasion, I printed a "four page per page" version of what was filed by email, and went
23
into the RMC and had it file stamped, "just in case". Alas, what wound up in the Record on Appeal
24
25 was an illegible scanning of this "four page per page" version, not the much clearer "one page per
26 page" version Ballard promised me would appear in the Record on Appeal.

27
28
- 2
551
1 6. It was on December 13th, 2011 when I personally hand delivered that version of the Notice
2 of Appeal to the RMC for filing, and at that time an RMC filing office clerk whom I believe is
3
named "Tom" confirmed to me and Ballard that Veronica Lopez has verified to him that my Notice
4
of Appeal was timely filed on that day and that Judge Howard had expressly approved so filing a
5
6
Notice of Appeal at that time and ruled that so doing would be and was timely.
7 7. In accordance with the factors enunciated by the Nevada Supreme Court in Brunzell v.
8 Golden Gate Nat. Bank, 85 Nev. 345, 349, 455 p.2d 31 (1969) and as set forth in SCR 155, I show
9
the Court:
10
a) I have been practicing law in Nevada for approximately 7 years. My practice emphasizes
11
family law, patent law, foreclosure defense, real estate, real estate litigation, landlord-tenant work,
12
13 consumer rights, domestic violence advocacy, employment law, business, business litigation and
14 general commercial law. My current standard hourly rate is $225.00 per hour. Upon inquiry, I
15
understand that rates to be well within the range of fees charged by other attorneys with comparable
16
qualifications in the community for similar services. The fees charged were actually, reasonably and
17
necessarily incurred.
18
19 b) The work that was actually performed in connection with the instant opposition is itemized
20 thusly and has been actually incurred and billed to my client: $1,500.00 for preparing and filing this
21
Opposition to Motion to Dismiss Appeal, which was necessary and reasonable under the
22
circumstances.
23
8. I have personally reviewed all attached exhibits to the opposition referenced above, and
24
25 each exhibit is a true and correct copy of what it purports to be.
26 9. I, Zach Coughlin, do hereby swear, under penalty of perjury, that the following excerpt
27
from the end of the audio record of the November 30th, 2011 Trial in RMC 11 CR 22176 represents
28
- 3
552
1 a completely true and accurate transcription (made from the CD of the Trial that the undersigned
2 purchased from the RMC and taken from the file named: "[MCFTRB]_20111130-
3
2033_01ccaf9f451ed090" ) of what was said in open court, on the record, beginning at 8:33:11 pm
4
on November 30th, 2011 in Judge Howard's court room:
5
6
"JH: alright we are back on the record in regard to City v. Zachary Coughlin.
I was admittedly remiss in not advising Mr. Coughlin of his right to appeal.
7 We do want to take care of that now on the record. Mr. Coughlin, you have
the right to appeal the decision of this Court. You can do so by filing a Notice
8 of Appeal. Customarily, it's 10 days and thats, uh, I'm sure you are fully
9
aware of that...What I am going to do is grant an extension to that statute in
light of the fact that you will not be released from custody until December
10 3rd, so your 10 days will run effective December 3rd at 8 pm, so you will
have 10 days from that date to file a Notice of Appeal with this Court, now
11 once you file your Notice of Appeal there are several things that you will have
to do, principal among those is to obtain a copy of the transcript at your
12
expense. Once the transcript has been forwarded to the District Court, there is
13 no Trial de novo, you are probably aware that the District Court judge will
review the four corners of the transcript to determine, one, whether this court
14 has made any legal errors that would justify a reversal of this matter or
whether there is sufficient evidence within the transcript to justify the finding
15
of guilt that I have made here today. Is there any questions at all with regard
16 to the appeal process?
17 ZC: The availability of a Stay, that I guess would go more towards the
finding of Contempt? Um, when you say "appeal process" are you referring
18
to...?
19
JH: The filing of appeal in regard to the petit theft.
20
ZC: Not in regard to the Contempt?
21
22 JH: No, thats a summary proceeding and we are going to go forward with
that. One thing that I will say in regard to the petit theft Trial and subsequent
23 sentencing, however, its my recollection, improperly, that you had failed to
appear at the previous proceeding, and that's not correct, uh, there was another
24
reason as to why we were unable to proceed, so I am going to delete the 24
25 hours of community service, the fine of $360 will stand. Alright, any other
questions involving the Appeal process?
26
ZC: Yes, to the extent my law practice's clients, that their cases will be
27
unduly prejudiced by your incarcerating me right now...
28
- 4
553
1 JH: I am standing by that and I wish you would have thought about that after
each admonishment that I gave you during the Trial.
2
3 ZC: You are saddened by that.
4 JH: We are in recess. " (commotion of Marshals can be heard and the audio
recording of the record of the Trial ends).
5
6
10. However, what is really interesting is that the Reno City Attorney/RMC/ and RSIC Police
7
all refused to provide even an arrest report or probable cause sheet for one month following the
8
9
September 9, 2011 arrest at the center of this matter. The Reno City Attorney's office, (including in
10 a telephone conversation I had with Hazlett-Stevens, Esq.) repeatedly refused to provide an arrest
11 report, probable cause sheet etc., indicating that they "did not even have those things" throughout the
12
period between the 9/9/11 arrest and the court date of October 10, 2011, despite the fact that
13
subsequently propounded discovery from Roberts shows the Reno City Attorney's Office was faxed
14
these items by the RSIC (an the RSIC, RSIC Sargent Avansino, etc. all gave me the same song and
15
16 ance about "we don't have it, can't give it to you even if we did", etc., etc..
17 11. RMC Judge Howard runs the Reno Municipal Court with an iron fist, sentencing
18
attorneys who say "wow" under their breath upon some incredible departure from due process
19
fundamentals by Judge Howard to a summary contempt order requiring Judge Howard's Marshals to
20
essentially gang grope an attorney, knock his laptop out of his hands so he cannot save his trial
21
22 notes, and take him away to a three day bed and breakfast up at 911 Parr Blvd, complete with no
23 opportunity to make a phone call to arrange the avoidance of prejudicing client matters. Judge
24
Howard attempted to specify his rationale and basis for a summary contempt finding by rotely ready
25
off some form document or section of his Bench Book checking a box with some generic
26
description like "committed contempt contrary to the administration of justice or in derogation of the
27
28 authority of the court" in a manner that does not quite satisfies the requirements that Joseph
- 5
554
1 Houston fought so eloquently for in Houston v. Eighth. Judicial District Court, 122 Nev. Adv. Op.
2 51 (2006). Judge Howard makes Orders far exceeding his jurisdiction, Ordering members of the
3
public to never contact anyone at all associated with the Reno Municipal Court by email, or even
4
use general email addresses like renomunirecords@reno.gov, jumping into traffic cases in other
5
6
judges departments to have his filing office operatives issue invective and threats, sometimes in the
7 form of being accosted by five armed strangers demanding to know information to which they have
8 no right, in an awesome show of force, power, control, and fascism. The "Docket" in this matter
9
contains no indication of a Notice of Entry of Order ever being made in the completely under Judge
10
Howard's thumb and control "docket" in this matter. Several personnel (including a younger female
11
I was brought when I asked to verify something with a supervisor) in the RMC Filing Office
12
13 admitted to me that the RMC filing office has zero oversight over Judge Howard, nor any system of
14 checks and balances, as they entire filing office cowers in fear of the wrath of Judge Howard like
15
some poor battered spouse hoping to avoid another three day trip to the hole for some minor
16
transgression, such as making eye contact with him.
17
Judge Howard ignored his own "Bench Book" and went so far outside his jurisdiction as to
18
19 resort to citing a case from Michigan for the proposition that I, an indigent individual, was not
20 entitled to appointed counsel where, as here, the charge carried with it the possibility of jail time.
21
Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. (2006) held that if the possible sentence includes any
22
jail time the defendant must be afforded an attorney. One thing is clear, at the conclusion of
23
the11/30/11 trial, Judge Howard's Marshal's suddenly assaulted Coughlin, placing him in cuffs,
24
25 refusing to allow him to save his trial notes on his laptop, then shoved some papers in Coughlin's
26 face, demanding Coughlin sign them without any opportunity to review what they said or know
27
what they were. As is so typical of those completely corrupted by their unfettered power, these
28
- 6
555
1 Marshals quickly were irked at Coughlin's meager attempts to inquire as to what it was they wanted
2 him to sign, pulling the papers away from Coughlin while refusing to explain at all, mocking him
3
with their derision and taunts that they would simply "put that you refused" in the blank on the
4
from....Apparently this shameful scene is tantamount to service of an order to some, however, as
5
6
Washoe County Jail Records reveal, the belongings Coughlin came with and left with incident to his
7 3 day getaway trip to Parr, courtesy of Judge Howard's intemperance show conclusively that those
8 Marshals did not ever leave an Order of 11/30/11 with Coughlin or in any way allow Coughlin to
9
maintain possession of such, or even to later access it.
10
12. Further, Judge Howard;s Judicial Assistant, upon Coughlin's release from WCDC,
11
refused to provide Coughlin a copy of any such Order, then this Veronica Lopez lied to Coughlin,
12
13 promising to fax him a copy in a darkly menacing tone, yet failing to ever do so. Further, what oral
14 pronouncements were issued by Judge Howard at the 11/30/11 Trial's conclusion, certainly did not
15
reflect all that was written in the Guilty Verdict and concomitant Summary Contempt Order, as
16
such, no deadline for filing an appeal subject to RMCR 9 could begin running until proper service of
17
any such Order occurred, something that has yet to be made clear, whether "constructive service" or
18
19 otherwise. Prior to divulging the Record on Appeal to the District Court, the RMC Filing Office
20 certainly never let the undersigned see any "docket", much less a certified one. Regardless, I was
21
refused on multiple instances by RMC filing office personnel any copy of, viewing, or access to the
22
docket in 11 CR 22176, but the same gentleman clerk (perhaps named "Tom") did confirm to me, on
23
December 13th, 2011, I believe, that, as of that date, there was absolutely no entry or indication
24
25 anywhere in his system or any records, electronic or otherwise to which he is normally afforded
26 access to indicate any entries had been made in the docket since prior to the 11/30/11 Trial in that
27
matter. The undersigned suspects what Judge Howard hates so much about email is that he cannot
28
- 7
556
1 intimidate a computer into saying something was file or received at a different time than that which
2 the 1's and 0's of the computer's processor tell it was the time and date, much less than manner or
3
content, all of which is recorded in magnificent clarity, electronically, when one sends (pursuant to
4
an express permission to so file pleadings in the RMC given by RMC Filing Office Supervisor
5
6
Donna Ballard) in an emailed pleading.
7 13. Further, it seems ill advised for John Kadlic and the Reno City Attorney's Office in
8 general to remain on this case, his name listed as filing pleadings (he is listed with Pam Roberts as
9
"Attorney's for the Respondents" in the instant Motion to Dismiss), as Kadlic has been known to ask
10
the undersigned's family physician father, in front of the undersigned for a prescription of this or
11
that or to be fit in here or there and who knows what other weird conflicts of interest (ie, whether or
12
13 not a certain family physician has a demonstrated tendency toward a Münchhausennn by Proxy
14 style of parenting, etc., etc.: http://emedicine.medscape.com/article/295258-overview), or where

15
Kadlic and Dr. Coughlin's relationship has apparently been strained by Dr. Coughlin failure to "take
16
sides" sufficient to please City Attorney Kadlic pursuant to the City Attorney Kadlic's divorce from
17
his former wife, Paulette and tensions emanating therefrom between Kadlic and his daughter Blair.
18
19 14. Pam Roberts suborned the perjury of Reno Sparks Indian Colony Officer Kameron
20 Crawford during the November 30th 2011 Trial in RMC 11 CR 22176 when she called him as her
21
own witness, and he testified that the accused failed to provide his driver's license, thus giving
22
Crawford the probable cause he needed to conduct a search incident to arrest. However, previous to
23
this, Pam Roberts herself possessed security camera footage of the accused giving Crawford his
24
25 current State of Nevada Driver's License (and dispatch records confirm that Crawford called in the
26 accused drivers license number in conjunction with the accused handing over his drivers license to
27
Crawford). Further, this video that Roberts was in possession of show Thomas Frontino, Wal-Mart
28
- 8
557
1 Asset Protection associate, handing the two RSIC officers additional video evidence beyond that of
2 the interrogation room video wherein the undersigned provided his State of Nevada driver's license
3
to RSIC Officer Crawford. Further, Roberts suborned the perjury of Frontino when he so falsely
4
testified that there existed no other video footage (despite the legion of surveillance cameras
5
6
interspersed over practically every isle at Frontino's Wal-Mart) of any matters pertinent to the
7 charge for which the undersigned was accused, including, incredibly, absolutely no footage of any
8 of the alleged concealing or consuming or doing of any other elements of the crime charged, despite
9
the fact that they very interrogation room video Roberts possessed showed Frontino so providing
10
such additional media evidence to RSIC Officers Crawford and Braunworth.
11
15. While NRS 5.075 requires that: "Form of docket and records. The Court Administrator
12
13 shall prescribe the form of the docket and of any other appropriate records to be kept by the
14 municipal court, which form may vary from court to court according to the number and kind of
15
cases customarily heard and whether the court is designated as a court of record pursuant to NRS
16
5.010..." RMC Court Administrator Matt Fisc apparently cease being so employed sometime in,
17
approximately, November 2011, throwing everything into disarray and vitiating any sense of checks
18
19 and balances or oversight as to the unfettered dominance exhibited by Judge Howard over the
20 system of justice dispensed at the RMC, preventing the undersigned from exercising his Sixth
21
Amendment Right to Counsel and from getting a jury trial. The RMC website claims: "The Reno
22
Municipal Court was established by charter in 1966 by the State Legislature. We are a high-volume,
23
limited jurisdiction court of record which adjudicates criminal misdemeanor (e.g., domestic
24
25 violence, DUI, drug paraphernalia and petty theft) and traffic violations committed by adults within
26 the City of Reno proper. We are a non-jury court with bench trials only. Misdemeanor offenses
27
28
- 9
558
1 committed within the county limits are handled by the local Justice Courts as are all gross
2 misdemeanors and felonies."
3
16. Judge Howard refused to even grant the undersigned a continuance where the undersigned
4
has recently been wrongfully evicted from his home law office via an impermissible application of a
5
6
summary eviction proceeding against a commercial lessee where failure to pay rent was not alleged
7 and or the eviction Notice was a No Cause Eviction Notice. The undersigned indicated that an
8 unlawful rent distraint was at that time being applied to exculpatory evidence and evidence
9
establishing a retaliatory motive and intent on the parts of both Wal-Mart and the Reno City
10
Attorney's Office (given the specter of multiple police misconduct and or negligent hiring, training,
11
and supervision, 42 USC Sec. 1983, defamation lawsuits the City of Reno faces in connection with
12
13 misconduct Officers committed against the undersigned in the past six months and of which the
14 Reno City Attorney's office was aware) necessary to the defense of the trial in this matter. Such
15
evidence may evince a retaliatory intent and declaration on the part of various Wal-Mart personnel
16
and RPD personnel where the undersigned had been wrongfully arrested just some two weeks prior
17
to the 11/30/11 Trial in this matter, and subject to a wrongful lockout just four weeks prior to the
18
19 Trial (not just a lockout from one's home or office, but both, and a law office no less). The
20 undersigned submitted a complaint about RPD Officer misconduct to the RPD On September 7,
21
2011, and again on several other occasion One such complaint involved reporting that, at the time,
22
of the undersigned's November 12, 2011 wrongful custodial arrest for "trespass" a RPD Officer had
23
admitted to the undersigned that the opposing attorney in that summary eviction proceeding,
24
25 Richard G. Hill, Esq. "pays him a lot of money and so he arrest whom Hill tells him to arrest and
26 does what Hill says to do". The Reno City Attorney's Office defends the RPD in police misconduct
27
lawsuits and has a vested interest in smearing the undersigned's reputation.
28
- 10
559
1 17. As for Judge Howard's Summary Contempt Order in this matter, it is entirely untrue to
2 say that there was order that spelled out the details of compliance in clear, specific and unambiguous
3
terms so that the person should have readily known exactly what duties or obligations were imposed
4
on him. Judge Howard failed to issue any Order "that spelled out the details of compliance in clear,
5
6
specific, and unambiguous terms so that the person should have readily known exactly what duties or
7 obligations were imposed on him...". Rather, Judge Howard, about 10 minutes into Trial, began
8 menacingly threatening the undersigned, attempting to badger, berate, and intimidate the undersigned
9
into failing to defend himself in this matter, to refrain from preserving objections for the record, etc.,
10
etc.
11
18. I declare under penalty of perjury that the foregoing is true and correct.
12
13

15
The undersigned does hereby affirm that the preceding document does not contain the social
16
security number of any person.
17
18
19 DATED this 30th day of January, 2012.
20
21
______________________
22 Zachary Barker Coughlin
23
24
25
26
27
28
- 11
560
FILED
Electronically
01-30-2012:04:48:12 PM
Clerk of the Court
EXHIBIT #3
EXHIBIT #3
561
Search Results » TransparentNevada Page 1 of 1
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Search for: pamela roberts
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Total Pay
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& Benefits
PAMELA ROBERTS 5750 Deputy City Attorney II $95,590.21 N/A $114,572.88 Reno 2010
PAMELA ROBERTS Deputy City Attorney II $92,457.02 $19,878.26 $110,582.44 Reno 2009
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http://transparentnevada.com/salaries/search/?q=pamela+roberts&t=name&j=reno&y=any 1/30/2012
FILED
Electronically
01-30-2012:04:48:12 PM
Clerk of the Court
EXHIBIT #4
EXHIBIT #4
563
RMC said I could file this by email

Sent: Mon 12/12/11 7:28 PM
1 attachment
12 11 11 final motion for new trial city of reno v coughlin RMC 11 CR 22176.pdf (12.9 MB)
Dear RMC,
I called an wrote earlier and received approval to file the attached pdf and
media files by email rather than fax or other submission. This filing is large,
as such, it must be broken down into segments. this is part one, part two will
be in the next email. I will pay whatever filing fee or bond or whatever I
have to pay to access justice in this here case.
Sincerely,
Zach Coughlin, Esq.

Reno, NV 8950
fax: 949 667 7402
privilege.

Sent: Mon 12/12/11 7:40 PM
564
1 of 5 1/30/2012 6:19 AM

1 attachment
RMC 11 CR 2217 part two Exhibit 1 pages 1-300 of Motion for New trail from 12 12 2011.pdf (8.6 MB)
I received approval to file by email from RMC

This is the second file in the filing. Please note, the file name of the attachment should actually have the correct
case number of RMC CR 22176. It is missing the 6 on the end in the file name of the attachment
Zach Coughlin, Esq.

Reno, NV 89501
tel: 775 338 8118
fax: 949 667 7402
privilege.

Sent: Mon 12/12/11 7:57 PM
1 attachment
RMC 11 CR 22176 part three Exhibit 1 pages 301-600 of Motion for New trail from 12 12 2011.pdf (9.7
MB)
Zach Coughlin, Esq.
565
2 of 5 1/30/2012 6:19 AM

Reno, NV 89501
tel: 775 338 8118
fax: 949 667 7402
privilege.
Sent: Mon 12/12/11 8:23 PM
1 attachment
(11.8 MB)
Zach Coughlin, Esq.

Reno, NV 89501
tel: 775 338 8118
fax: 949 667 7402
566
3 of 5 1/30/2012 6:19 AM
privilege.
Sent: Mon 12/12/11 8:29 PM
1 attachment
(14.4 MB)
Zach Coughlin, Esq.

Reno, NV 89501
tel: 775 338 8118
fax: 949 667 7402
567
4 of 5 1/30/2012 6:19 AM
privilege.
Subject: Motion for New Trial Etc. in RMC 11 CR 22176
Date: Mon, 12 Dec 2011 19:57:50 -0800
Zach Coughlin, Esq.

Reno, NV 89501
tel: 775 338 8118
fax: 949 667 7402
privilege.
568
5 of 5 1/30/2012 6:19 AM
FILED
Electronically
01-30-2012:04:48:12 PM
Clerk of the Court
EXHIBIT #5
EXHIBIT #5
569
570
571
572
573
574
575
576
NOTE: THIS IS THE RECEIPT FOR THE ITEMS THAT WERE RUNG UP AND FOR WHICH MONEY WAS PAID. WAL-
MART'S THOMAS FRONTINO AND RSIC OFFICER CRAWFORD LIED WHEN THEY BOTH TESTIFIED THAT THEY VERIFIED
THAT THE UPC FOR THE "COUGH DROPS" ON THE RECEIPT ON THE PAGE ABOVE THIS ONE DID NOT APPEAR ON
THE RECEIPT FOUND BELOW). HOWEVER, CLEARLY THAT SAME UPC APPEARS ON BOTH RECEIPTS (THE UPC IS
0732211630093). FRONTINO EVEN TRIED TO TESTIFY THAT HE WAS ABLE TO DISCERN FROM APPROXIMATELY 50
FEET AWAY THAT HE COULD TELL EXACTLY WHAT ITEMS AND WHAT UPC'S WERE BEING RUNG UP AT THE REGISTER
AND THAT HE WAS ABLE TO VERIFY THAT THE UPC'S FOR THE COUGH DROPS ON THE "STOLEN" RECEIPT" WERE
NOT FOUND ON THE "PURCHASED" RECEIPT. HOWEVER, CLEARLY, FRONTINO WAS WRONG OR LYING, OR BOTH.
577


Clerk Accepted: 01-30-2012:16:58:15
Document(s) Submitted: Opposition to Mtn
- **Continuation
- **Continuation
- **Continuation
- **Continuation
- **Continuation
COUGHLIN
578
FILED
Electronically
02-01-2012:04:46:41 PM
3
1422 E. 9th St. #2
Reno, NV 89512
4 Tele: 775-338-8118
Fax: 949-667-7402
6

9
ZACH COUGHLIN; )
10 )
Appellant, )
11 )
12
)
)
14 Respondents. )
)
15
16
17 SUPPLEMENT TO MOTION TO DISMISS

18
19
Coughlin, Esq , and offers his SUPPLEMENT TO MOTION TO DISMISS. The undersigned was
20
instructed by the Second Judicial District Court to submit a cd/dvd for filing as an exhibit to a filing
21
22 in this manner.
23 McCrary v. McCrary, 764 P.2d 522, 1988 OK 122 (Okla. Nov 01, 1988) (NO. 62,814)
24
judgment is deemed rendered only when its *527 terms are announced to the parties by the judge,
25
and a judgment in absentia is not “rendered” until notice of its entry is mailed to the parties.
26
McCullough v. Safeway Stores, Inc., Okl., 626 P.2d 1332 (1981); Rules of Appellate Procedure, 12
27
28 O.S.1981, Ch. 15, App. 2, Rule 1.11(b). See: Peralta v. Heights Medical Center, Inc., 485 U.S. 80,
- 1
SUPPLEMENT TO MOTION TO DISMISS
579
1 108 S.Ct. 896, 99 L.Ed.2d 75 (1988). We also note that after the trial court's ruling the intervenors
2 attempted to obtain extraordinary relief from this Court to prohibit the court from proceeding
3
further, and we denied relief. There undersigned believes, under penalty of perjury, that Pam
4
Roberts was not even in the courtroom when Judge HOward brought the undersigned back in chains
5
6
to correct that which he has been "remiss" in not doing earlier (ie, making rulings related to the Stay
7 of the Contempt punishment, and the deadline to file a notice of appeal, or even informing the
8 underisgned of his right to file an appeal and the requirments). Judge Howard did say some stuff
9
about how he "is sure you know this" or that about the procedural technicalities that Judge Howard
10
encounters everyday in his job, yet the undersigned really does not know such things. 10 days to file
11
a notice of appeal? didn't know that. NRCP 6(a) and (e) don't apply to such matters? Its straight
12
13 days? Rendition, not notice of entry? Didn't know none of that. Thats what the Sixth Amendment
14 is for. Further that rule sucks. You get more protection in a civil matter to appeal a lawsuit over a
15
box of widgets. WE are talking about my law license here, Judge Howard makes the trial a
16
lynching. But like 2 million Irish people betwen 1848 and 1850 who starved to death while
17
surrounded by a sea of fish, Judge Howard makes like the English and tries to arrest one for fishing.
18
19 The rule shoudl be changed. But, at the least the RMC shoudl have to follow it, and they didn't.
20 Further, Roberts may have violated prosecutorial conduct rules related to suborning perjury,
21
propounding or disclosing exculpatory evidence, etc. ,and arguably she should be required to put
22
such into evidence or refrain from offering that which contradicts such evidence in her possession or
23
that which she should be required to find upon a reasonably diligent inquiry. Roberts apparently
24
25 didn't discover and footage from this behemoth retailer with cameras everywhere in the store
26 relevant to any of the accused acts. Nope, its all he said she said here, except the interrogation room
27
videos, which show the 3 witness Roberts offered lied. In the following cases it was held that an
28
- 2
580
1 attorney's contemptuous conduct cannot be excused or justified by the fact that the attorney believed
2 his conduct to be necessary to the proper and thorough representation of his client, and that an
3
attorney may summarily be held to be in contempt notwithstanding such good-faith belief. The court
4
held that a trial attorney's belief that certain action is necessary to protect the record for appellate
5
6
review, and to represent his client's interests, does not excuse his deliberate defiance of the trial
7 judge's orders in Pennsylvania v International Union of Operating Engineers (1977, CA3 Pa) 552
8 F2d 498, cert den 434 US 822, 54 L Ed 2d 79, 98 S Ct 67, where the court affirmed two summary
9
orders of criminal contempt entered against a defense attorney. The contempt holdings had been
10
based on the attorney's insistence upon stating the reasons for his objections to certain holdings by
11
the trial court, and his refusal to comply with the court's direction pertaining to the cross-
12
13 examination of a witness. In essence, said the court, the attorney asserted that he was free to violate
14 a direct order of a trial judge if he believed that the protection of his client's interests on appeal
15
required such action. The court recognized an attorney's right to be conscientious, fearless, and
16
zealous in representing his client's interests, but held that a direct order of the trial judge fixes the
17
limits of proper advocacy; the vigor permissible in representing a client's interest does not include
18
19 the flouting of a judge's rulings. The necessity of preserving the record for appeal, said the court, is
20 not a talisman which absolves a lawyer from his usual obligation to comply with a trial judge's direct
21
orders. The attorney also argued that his disregard of the judge's order was necessary to persuade the
22
judge to retract his restriction on the attorney's method of cross-examination. An appeal, it was said,
23
would provide an inadequate means of challenging the restriction since the witness was said to have
24
25 been cornered, and since the attorney had achieved a momentum which probably never could be
26 resumed at a new trial after an appeal. The court held, however, that the attorney could not
27
permissibly defy the judge's order in the interests of seizing an allegedly irrecoverable opportunity.
28
- 3
581
1 An attorney's good-faith belief in the necessity of his actions, in order properly to represent his
2 client, was held not to justify contumacious behavior in United States v Offutt (1956, DC Dist Col)
3
145 F Supp 111, mod on other grounds 101 App DC 97, 247 F2d 88, cert den 355 US 856, 2 L Ed
4
2d 64, 78 S Ct 85, where, on remand, the court held that the trial court properly had summarily held
5
6
an attorney to be in contempt based upon insulting and offensive remarks made to the court. The
7 attorney asserted that what he said was true, and that he said it in order to make a record for appeal,
8 and in order to comply with the advice given him by counsel with whom he had consulted.
9
However, the court held that advice of counsel is not a defense to a charge of contempt, stating that
10
neither such advice, nor ignorance, nor zeal for his client, could alter the contumacious character of
11
the attorney's conduct. The courts in the following cases, while not holding that good-faith vigorous
12
13 advocacy may preclude the summary punishment of an attorney for contempt, recognized that an
14 attorney must be given broad latitude in his representation of his client, and that this factor must be
15
taken into account in determining whether conduct of an attorney amounts to contempt which is
16
summarily punishable by the court. In United States v Schiffer (1965, CA6 Tenn) 351 F2d 91, cert
17
den 384 US 1003, 16 L Ed 2d 1017, 86 S Ct 1914, reh den 385 US 890, 17 L Ed 2d 121, 87 S Ct 12,
18
19 the court, in upholding the trial court's summary punishment of an attorney for contempt under Rule
20 42(a) of the Federal Rules of Criminal Procedure, said that in contempt cases against lawyers the
21
evidence must be carefully scrutinized in order that there be no undue interference with their right
22
properly to represent their clients; nevertheless, it was held that the punishment imposed was
23
warranted in view of the deliberate, continuous, and repeated contumacious acts of the attorney,
24
25 extending throughout the trial, which were said to have been wholly unwarranted. The court in Re
26 Dellinger (1972, CA7 Ill) 461 F2d 389, on remand (ND Ill) 357 F Supp 949 and on remand (ND Ill)
27
370 F Supp 1304, affd (CA7 Ill) 502 F2d 813, cert den 420 US 990, 43 L Ed 2d 671, 95 S Ct 1425,
28
- 4
582
1 stated that attorneys must be given great latitude in the area of vigorous advocacy, and that an
2 attorney may with impunity take full advantage of the range of conduct that our adversary system
3
allows. Nevertheless, said the court, the fact that an attorney is representing his client in good faith
4
does not immunize all conduct undertaken in that cause, although the court reversed the trial court's
5
6
summary imposition of punishment upon two defense attorneys for contempt, and remanded the
7 numerous specifications of contempt for a hearing before a different judge, on the ground that the
8 trial judge was required to disqualify himself from hearing the contempt proceedings because he had
9
been the recipient of numerous and unprecedented attacks and insults by the attorneys charged
10
during the course of the trial. Where the trial judge is arbitrary or affords counsel inadequate
11
opportunity to ar-gue his position, counsel must be given substantial leeway in pressing his
12
13 contention, said the court, for in this manner the court may recognize its mistake and prevent error
14 from infecting the record. Appellate courts, the court said, must insure that trial judges are not left
15
free to manipulate the balance between vigorous representation and obstructions of justice so as to
16
chill effective advocacy when deciding lawyer contempts. It was said that where the conduct
17
complained of in a summary contempt proceeding is that of an attorney engaged in the
18
19 representation of a litigant, the search for the essential elements of the crime of contempt must be
20 made with full appreciation of the role of trial counsel and his duty of zealous representation of his
21
client's interests in United States ex rel. Robson v Oliver (1972, CA7 Ill) 470 F2d 10. Furthermore,
22
said the court, in close cases where the line between vigorous advocacy and actual obstruction defies
23
strict delineation, doubts should be resolved in favor of vigorous advocacy. The attorney represented
24
25 one of a number of defendants in a criminal prosecution in which the defendants were charged with
26 mutilating draft records. In cross-examining a codefendant, the attorney referred to a photograph of

27
a hallway, apparently through which the defendants had passed to reach the office in which the
28
- 5
583
1 records were contained, and asked him if he could make out a little sign stating "abandon ye all hope
2 who enter here." In view of the extreme liberality afforded trial counsel in their representation of
3
clients, and resolving any doubts in favor of vigorous advocacy, the court concluded that such
4
conduct did not rise to the level of misbehavior necessary to support
5
6
a contempt citation. Commenting that the attorney's question was related to the defendants'
7 proffered theory of defense and touched on the insane "preceptions" and "delusions" which the
8 defendants claimed to have held prior to making the raid on the draft board files, the court reversed
9
the trial court's holding of contempt. But in the following case, it was held that where an attorney in
10
good faith believes that his duty of advocacy requires his conduct, a summary contempt conviction
11
based upon such conduct cannot withstand challenge, at least where the attorney believed that the
12
13 court did not understand his position. Thus, it was held in Re Dellinger (1973, ND Ill) 370 F Supp
14 1304, affd (CA7 Ill) 502 F2d 813, cert den 420 US 990, 43 L Ed 2d 671, 95 S Ct 1425, that an
15
attorney could not properly be summarily punished for contempt in the presence of the trial court
16
where the attorney sincerely believed that his acts were necessary because the trial court did not
17
understand the argument which the attorney was asserting. The trial court had sustained a
18
19 government objection to testimony by a witness concerning a certain speech given by a person who
20 was not a witness at the trial. After the court's ruling, the attorney continued to argue that the speech
21
was relevant, despite repeated directions from the judge to discontinue that argument, in that such
22
testimony allegedly would have demonstrated the nonviolent intent of the defendants, who were
23
charged with violation of the Federal Anti-Riot Act. The court, in hearing the contempt question
24
25 upon remand from an appeal[33] of the trial court's action in that regard, held that the attorney was
26 not guilty of the specification, pointing out that the attorney sincerely believed that the judge had not
27
given him a reasonable opportunity to be heard and that the judge did not fully understand his
28
- 6
584
1 position. Judge Howard played football at UNR, and, perhaps, like ther undersigned's father, who
2 played tailback for Tulane in the SEC on scholarship from Dayton Ohio (third fastest white boy in
3
Ohio circa 1963), Judge Howard's approach here "hits the A gap a little too hard". The undersigned
4
is no stranger to getting fouled by the fine competitors Hug High School produces, like Charles,
5
6
Claude, Duke, Armon, Trey, Shondor, Tye, and Tommy, though: Reno High Basketball Clippings
7 1897-2008ish: http://cid22e2ebee5aa79fdf.skydrive.live.com/browse.aspx/.Public
8 http://www.nfhs.org/recordbook/Records.aspx?CategoryId=1073 Impertinence, attacks upon

9
competency or impartiality, or the like—Conduct held not to warrant summary punishment Under
10
the particular circumstances of each of the following cases, it was held that remarks by an attorney,
11
considered by the trial court to be an attack upon its conduct of the trial and therefore to be
12
13 contemptuous, did not warrant that court's summary punishment of the attorney. In Parmelee
14 Transp. Co. v Keeshin (1961, CA7 Ill) 292 F2d 806, a case arising out of a trial court's summary
15
punishment of an attorney for contempt, and apparently governed by Rule 42(a) of the Federal Rules
16
of Criminal Procedure,[43] the court held that the record did not support the trial court's action, even
17
though the trial court had regarded certain conduct of the attorney to be impertinent and
18
19 disrespectful. In one of the specifications of contempt, the trial court cited the fact that, upon that
20 court's sustaining of objections to certain questions put by the attorney to a witness, the attorney had
21
remarked "that is crazy," but the court, noting that the remark was not intended to be heard by either
22
the trial court or jury, and that the record failed to show that the trial judge took any notice of the
23
remark at the time, held that contumacious conduct had not been proved under the specification. The
24
25 court also held that the attorney's remark that the trial court had "a sardonic sense of humor," in
26 commenting upon certain actions taken by that court, did not constitute contempt for which the trial
27
court had the authority to impose summary punishment.[44] And see United States ex rel. Robson v
28
- 7
585
1 Oliver (1972, CA7 Ill) 470 F2d 10, where the court stated that an attorney's remarks may have
2 suggested disrespect for the trial court's rulings, but nevertheless reversed the trial court's summary
3
imposition of punishment upon the attorney for contempt, under Rule 42(a) of the Federal Rules of
4
Criminal Procedure, on the ground that such remarks did not cause an actual disruption of the trial
5
6
proceedings. In Hampton v Hanrahan (1979, CA7 Ill) 600 F2d 600, revd, in part on other grounds
7 446 US 754, 64 L Ed 2d 670, 100 S Ct 1987, reh den 448 US 913, 65 L Ed 2d 1176, 101 S Ct 33
8 and reh den 448 US 913, 65 L Ed 2d 1177, 101 S Ct 33 and on remand (ND Ill) 499 F Supp 640 and
9
on remand (ND Ill) 522 F Supp 140, the court reversed the trial court's summary holding that an
10
attorney was in contempt on the ground that the attorney's conduct did not obstruct justice, but the
11
court also pointed out that the attorney's remark, upon which the contempt holding was based, was
12
13 misinterpreted by the trial judge as being intended to reflect improperly upon him, where in fact the
14 remark was made by the attorney in an attempt to clarify a previous statement.[45] An attorney's
15
mere statement that the trial court's sustaining of an objection to a question of the attorney precluded
16
the attorney from cross-examining the witness was held in Phelan v Guam (1968, CA9 Guam) 394
17
F2d 293, not to warrant the summary imposition of punishment upon the attorney for criminal
18
19 contempt, under Rule 42(a) of the Federal Rules of Criminal Procedure (U.S.C.A., FRCrP Rule
20 42(a)). The court pointed out that the attorney had asked for an exception to the court's ruling,
21
whereupon the court voluntarily took it upon itself to tell the attorney why the court had sustained
22
the objection. The attorney then defended the properness of his question. In reversing the trial court's
23
holding of contempt, the court pointed out that there was nothing in the language used by the
24
25 attorney which could be construed as hostile or defiant, or in any manner obstructing the procedure
26 of the trial. Improper questioning [Cumulative Supplement] In the following cases, it was held that
27
an attorney's persistent improper questioning of witnesses constitutes ground for the imposition of
28
- 8
586
1 summary punishment for contempt by a federal trial court. An attorney's persistence in cross-
2 examining witnesses with regard to irrelevant matters, after objections had been sustained with
3
respect to such questioning, was held in Hallinan v United States (1950, CA9 Cal) 182 F2d 880, cert
4
den 341 US 952, 95 L Ed 1375, 71 S Ct 1010, reh den 342 US 956, 96 L Ed 710, 72 S Ct 623 and
5
6
reh den 343 US 931, 96 L Ed 1341, 72 S Ct 756, to justify the trial court's imposition of summary
7 punishment for contempt under Rule 42(a) of the Federal Rules of Criminal Procedure. The
8 questioning upon which the trial court's contempt holding was based related to a prior deportation
9
proceeding against the defendant, which in no way was related to the present prosecution, to alleged
10
wiretapping of the defendant's telephones in order to obtain evidence in such prior deportation
11
proceeding, and to the practices of a prosecution witness with regard to his duties as an attorney for
12
13 the Bureau of Immigration and Naturalization. Noting that the attorney's proper course of action, if
14 the trial court erroneously had held that the matters inquired into were irrelevant, was to appeal
15
those holdings rather than to continue to attempt to introduce irrelevant evidence, the court upheld
16
the punishment imposed by the trial court. An attorney's improper questioning of witnesses,
17
including the use of questions which obviously were intended to besmirch those witnesses, was held
18
19 to justify a summary holding of criminal contempt, under Rule 42(a) of the Federal Rules of
20 Criminal Procedure, in Offutt v United States (1953) 93 App DC 148, 208 F2d 842, revd on other
21
grounds 348 US 11, 99 L Ed 11, 75 S Ct 11, where the court affirmed such a holding by the trial
22
court, although reducing the punishment imposed. It was noted that on several occasions the
23
attorney had asked the witnesses questions that were highly prejudicial to those witnesses and for
24
25 which there was no foundation. For example, he had asked the victim of an abortion, charged
26 against the defendant, "when" she was arrested in the case, whereas in fact she never had been
27
arrested. It was held that such conduct supported the trial court's summary finding of contempt.
28
- 9
587
1 CUMULATIVE SUPPLEMENT Cases: Attorney's conduct in continuing to cross-examine police
2 officer after judge had ruled that police log was not admissible was not contempt where attorney
3
claimed that he was trying to impeach witnesses' memory, not lay foundation for admission of log,
4
so that his conduct could not be said to be willful. United States v Giovanelli (1990, CA2 NY) 897
5
6
F2d 1227. In criminal prosecution, trial court properly meted out judgments of criminal contempt to
7 defense counsel for misconduct in cross-examining witnesses where trial judge on several occasions
8 warned counsel that he would not allow them to pursue lines of questioning that he later held to be
9
contemptuous, on one occasion he allowed them to explain at length why they thought questioning
10
was proper, and where judge made full and convincing explanation of actions in written orders
11
issued shortly after adjuging counsel in contempt. United States v Lowery (1984, CA7 Ill) 733 F2d
12
13 441, cert den (US) 83 L Ed 2d 264, 105 S Ct 327. Resort to summary disposition of criminal
14 contempt proceeding under Rule 42(a), Federal Rules of Criminal Procedure, is permissible only
15
when express requirements of rule are met and when there is compelling reason for immediate
16
remedy or when time is of essence. Thus, attorney's conviction for criminal contempt
17
in pursuing line of questioning forbidden by court would be reversed, since record showed that
18
19 there was no compelling need for immediate remedy provided by Rule 42(a), Federal Rules of
20 Criminal Procedure, and that trial court, by its own actions, did not consider time to be of essence;
21
trial court should have observed "normal" procedure" of notice and hearing, provided by Rule 42(b),
22
Federal Rules of Criminal Procedure. U.S. v. Moschiano, 695 F.2d 236, 12 Fed. R. Evid. Serv. 124
23
(7th Cir. 1982). See United States v Turner (1987, CA11 Ala) 812 F2d 1552, § 14. The undersigned
24
25 "continuing lines of inquiry" was not sanctionable. Legitimate rationale exists and or was offered
26 for all inquiry pursued. Further, Judge Howard admitted in the last part of the audio record that he
27
had (at the time of making his Summary Contempt finding announcement) be mistaken in believeing
28
- 10
588
1 that the November 14, 2011 original trial date did not go off due to the undersigned's fault, which
2 was not the case. the undersigned showed up for that trial, its was somebody else fault that it did not
3
go off. Tardiness or failure to appear—Conduct held not to warrant summary punishment
4
[Cumulative Supplement] The courts in the following cases have held that an attorney's absence or
5
6
tardiness did not justify the trial court's summary punishment of the attorney for contempt. An
7 attorney's failure to appear at a judicial hearing was held not to warrant the summary imposition of
8 punishment for contempt, under Rule 42(a) of the Federal Rules of Criminal Procedure, in Jessup v
9
Clark (1973, CA3 Pa) 490 F2d 1068. The attorney had begun a trial in a state court 2 days prior to
10
the date scheduled for the federal court trial at which he failed to appear. The state court trial
11
continued through the day of the scheduled beginning of the federal court trial. The attorney stated
12
13 that he had continued to conduct the state court trial believing that he was obligated to do so, and
14 that he had brought the matter to the attention of the state court judge and was instructed by that
15
judge to remain at the state court trial. The federal court's finding of contempt was reversed, it being
16
held that the attorney's conduct did not take place in the presence of the court, as required for
17
summary punishment under Rule 42 (a), and that there had been no need for immediate penal
18
19 vindication of the dignity of the court.[50] And see Re Monroe (1976, CA5 Tex) 532 F2d 424,
20 where it was held that an out-of-state attorney's failure to appear at trial did not amount to contempt
21
under the circumstances. It is not clear whether the case falls within the scope of this annotation
22
since, although the trial court recited as authority Rule 42(a) of the Federal Rules of Criminal
23
Procedure, that court stated that it was not going to charge the attorney with criminal contempt but
24
25 only civil contempt, whereas Rule 42(a) applies only to summary criminal contempt proceedings.
26 Nevertheless, the appellate court stated that, as a matter of law, there was no contempt, the court
27
pointing out that the attorney was unable to appear before the trial court because of his participation
28
- 11
589
1 in a murder trial in another state which had begun several months previously. Further, the attorney's
2 failure to file a motion for continuance at least 10 days before the trial date, as required by local
3
rules, was in part caused by a delay in the mails and a delay in his ability to obtain replacement local
4
counsel after his local counsel had withdrawn from the case. His motion for continuance had in fact
5
6
arrived at the trial court 1 week before the trial date. Noting that it was not established that the
7 attorney had actual knowledge of the 10-day rule, or that local counsel had advised him of it, the
8 court concluded that the attorney's conduct was at most negligent, stating that such conduct did not
9
contain the elements of intentional or willful action or flagrant disregard of the court's rules or orders
10
necessary for contempt. Tardiness or failure to appear at a court hearing was held not to justify the
11
imposition of summary punishment upon attorneys for contempt, under Rule 42(a) of the Federal
12
13 Rules of Criminal Procedure, at least where such failure or tardiness is unintentional, in United
14 States v Delahanty (1973, CA6 Ky) 488 F2d 396. One attorney was approximately 10 minutes late
15
for a pretrial conference because of his unfamiliarity with the city, traffic congestion, and difficulty
16
in finding a parking space. A second attorney, who was cocounsel with the first attorney,
17
intentionally did not appear, because he had other matters to attend to in a different city, but he had
18
19 requested the first attorney to represent both of them at the hearing. In reversing the summary
20 punishment imposed by the trial court, the court held that the conduct complained of, the absence of
21
the attorneys from the courtroom, did not occur within the actual presence of the court as required
22
under Rule 42(a), and that the essential element of criminal intent was absent. [51] And see Re Allis
23
(1976, CA9 Cal) 531 F2d 1391, cert den 429 US 900, 50 L Ed 2d 185, 97 S Ct 267, supra § 11,
24
25 where the court, in holding that an attorney's tardiness is not summarily punishable by a court, under
26 Rule 42(a) of the Federal Rules Criminal Procedure, since it is not conduct committed in the actual
27
presence of the court, commented that tardiness alone is not contempt, since the reasons for such
28
- 12
590
1 tardiness are important in determining the existence of the requisite wrongful intent on the part of
2 the attorney. The notice of appeal does and should apply to the Summary Contempt ORder as well,
3
that order was ridiculous and shameful.33 ALR 3rd 448, Appealability of Contempt Adjudication or
4
Conviction. Right to counsel The need for appointed counsel in a civil contempt proceeding for
5
6
nonpayment of child support turns on an initial determination of indigency, for unless a party is truly
7 indigent, the State need not provide representation; if an indigent party faces the threat of possible
8 incarceration for the nonpayment of child support, the court should then seek to balance the private
9
liberty interest at stake, the government's interest, and the risk of an erroneous finding, taking into
10
account the complexity of the legal and factual issues and the party's ability to effectively
11
communicate on his own behalf. Rodriguez v. Eighth Judicial Dist. Court ex rel. County of Clark,
12
13 2004, 102 P.3d 41, 120 Nev. 798, certiorari denied 125 S.Ct. 2905, 545 U.S. 1116, 162 L.Ed.2d 298.
14 Child Support 491 In determining whether an indigent party in a contempt proceeding based on
15
nonpayment of child support has a due process right to appointment of counsel, after balancing each
16
of the due process elements against the other, they as a whole are measured against the presumption
17
that a right to appointed counsel arises only when the indigent party may lose his personal freedom.
18
19 Rodriguez v. Eighth Judicial Dist. Court ex rel. County of Clark, 2004, 102 P.3d 41, 120 Nev. 798,
20 certiorari denied 125 S.Ct. 2905, 545 U.S. 1116, 162 L.Ed.2d 298. Constitutional Law 4494 N. R. S.
21
22.010, NV ST 22.010 ABout 10 minutes into the "Trial" Judge Howard Found the undersigned in
22
contempt, whereupon the sixth amendment righ to counsel was invoked, which Judge Howard curtly
23
dismissed. the Summary Contempt ORder is void, avaingst public policy, prevented a fair trial,
24
25 demonstrated evident impartialit, and severly curtailed the undersigned faith in the court and belief
26 that any evidence he offered or testimony would be given fair treatment, but rather, the undersigned
27
was givne the message that he would be clubbed with anything he said, as such, testimony and
28
- 13
591
1 evidence (that which was not being withheld illegally by Richard HIll, Esq. pursuant to an unlawful
2 rent distraint) was not given a legitimate opporutnity to be admitted or offered.For purposes of
3
statute governing summary contempt proceedings for direct contempt committed in judge's
4
presence, which requires court to “enter an order,” while a trial court's oral contempt order is
5
6
immediately enforceable, a written order including the statute's required elements must be promptly
7 entered. Houston v. Eighth Judicial Dist. Court ex rel. County of Clark, 2006, 135 P.3d 1269, 122
8 Nev. 544. Contempt 52 6. ---- Sufficiency Appropriate remedy for attorney who had been found in
9
direct contempt of court in divorce proceeding in which he represented wife, where contempt order
10
had been found to be insufficient by Supreme Court, in that it did not contain a sufficient statement
11
concerning what conduct was held to be contemptuous, was to permit trial court to enter amended
12
13 order, given that Supreme Court's opinion addressed issue of first impression and announced
14 standard for contents of written contempt order. Houston v. Eighth Judicial Dist. Court ex rel.
15
County of Clark, 2006, 135 P.3d 1269, 122 Nev. 544. Contempt 66(8) A written summary contempt
16
order, issued pursuant to statute governing summary contempt proceedings for direct contempt
17
committed in judge's presence, must set forth specific facts concerning the conduct found to be
18
19 contemptuous. Houston v. Eighth Judicial Dist. Court ex rel. County of Clark, 2006, 135 P.3d 1269,
20 122 Nev. 544. Contempt 52 Written summary contempt order finding attorney for wife in divorce
21
proceeding in direct contempt of court failed to indicate what particular comments by attorney were
22
held to be contemptuous, and, thus, order was insufficient, under statute governing summary
23
contempt proceedings for direct contempt committed in judge's presence. Houston v. Eighth Judicial
24
25 Dist. Court ex rel. County of Clark, 2006, 135 P.3d 1269, 122 Nev. 544 Judge Howard's Summary
26 Contempt ORder is laughably conclusory and generic. It must be set aside on that an other basis.
27
Further, the record on appeal demonstrates that the Contempt ORder does
28
- 14
592
1 not seem to have been served, their is no Proof of Service as far as I can tell so far....to either the
2 undersigned or the City Attorney. AS such, a Notice of Entry is required and the District Court may
3
not even have jurisdiction yet on this A "pleading" is not a "motion", but... RULE 15. AMENDED
4
AND SUPPLEMENTAL PLEADINGS Text (a) Amendments. A party may amend the party’s
5
6
pleading once as a matter of course at any time before a responsive pleading is served or, if the
7 pleading is one to which no responsive pleading is permitted and the action has not been placed
8 upon the trial calendar, the party may so amend it at any time within 20 days after it is served.
9
Otherwise a party may amend the party’s pleading only by leave of court or by written consent of
10
the adverse party; and leave shall be freely given when justice so requires. A party shall plead in
11
response to an amended pleading within the time remaining for response to the original pleading or
12
13 within 10 days after service of the amended pleading, whichever period may be the longer, unless
14 the court otherwise orders. [As amended; effective January 1, 2005.] (b) Amendments to Conform to
15
the Evidence. When issues not raised by the pleadings are tried by express or implied consent of the
16
parties, they shall be treated in all respects as if they had been raised in the pleadings. Such
17
amendment of the pleadings as may be necessary to cause them to conform to the evidence and to
18
19 raise these issues may be made upon motion of any party at any time, even after judgment; but
20 failure so to amend does not affect the result of the trial of these issues. If evidence is objected to at
21
the trial on the ground that it is not within the issues made by the pleadings, the court may allow the
22
pleadings to be amended and shall do so freely when the presentation of the merits of the action will
23
be subserved thereby and the objecting party fails to satisfy the court that the admission of such
24
25 evidence would prejudice the party in maintaining the party’s action or defense upon the merits. The
26 court may grant a continuance to enable the objecting party to meet such evidence. [As amended;
27
effective January 1, 2005.] (c) Relation Back of Amendments. Whenever the claim or defense
28
- 15
593
1 asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or
2 attempted to be set forth in the original pleading, the amendment relates back to the date of the
3
original pleading. (d) Supplemental Pleadings. Upon motion of a party the court may, upon
4
reasonable notice and upon such terms as are just, permit the party to serve a supplemental pleading
5
6
setting forth transactions or occurrences or events which have happened since the date of the
7 pleading sought to be supplemented. Permission may be granted even though the original pleading is
8 defective in its statement of a claim for relief or defense. If the court deems it advisable that the
9
adverse party plead to the supplemental pleading, it shall so order, specifying the time therefor.
10
Nevada NRCP 60(b)(3) allows a party to move for relief from a judgment which is void, and while
11
motions made under NRCP 60(b) are generally required to "be made within a reasonable time" and
12
13 to be adjudicated according to the district court's discretion, this is not true in the case of a void
14 judgment. Necessarily a motion under this part of the rule differs markedly from motions under the
15
other clauses of Rule 60(b). There is no question of discretion on the part of the court when a motion
16
is made under [this portion of the Rule]. Nor is there any requirement, as there usually is when
17
default judgments are attacked under Rule 60(b), that the moving party show that he has a
18
19 meritorious defense. Either a judgment is void or it is valid. Determining which it is may well
20 present a difficult question, but when that question is resolved, the court must act accordingly. By
21
the same token, there is no time limit on an attack on a judgment as void. . . . [E]ven the requirement
22
that the motion be made within a "reasonable time," which seems literally to apply . . . cannot be
23
enforced with regard to this class of motion. Understandably, the parties were not attuned to our
24
25 recent Jacobs decision during oral argument. Accordingly, it was determined at that time to allow
26 the parties to supplement their briefs in order to determine with certainty whether, in fact, no default
27
had been entered against Garcia prior to the entry of the default judgment. Garcia's supplemental
28
- 16
594
1 material supplied additional evidence that no default was ever entered, including an affidavit by
2 Clark County Court Clerk Loretta Bowman attesting that no such filing exists in the case file.
3
Respondents also acknowledged that no default was ever entered but argue in their supplemental
4
brief that Jacobs should not be applied retroactively, noting that the default judgment at issue herein
5
6
was entered prior to our Jacobs decision. This argument is without merit. The court in Jacobs
7 determined, consistent with law from other jurisdictions, that the default judgment entered in Jacobs
8 was void. We accordingly ordered the district court to grant relief from the void judgment, despite
9
the fact that the ruling in Jacobs was, of course, preceded by entry of the default judgment against
10
Jacobs. If this case, rather than Jacobs, were before us as a case of first impression, we would have
11
reached the same conclusion. A void judgment is void for all purposes and may not be given life
12
13 under a theory based upon lack of legal precedent. Garcia v. Ideal Supply Co., 110 Nev. 493, 874
14 P.2d 752 (Nev. 5/19/1994). The defective service rendered the district court's personal jurisdiction
15
over Gassett invalid and the judgment against her void. For a judgment to be void, there must be a
16
defect in the court's authority to enter judgment through either lack of personal jurisdiction or
17
jurisdiction over subject matter in the suit. Puphal v. Puphal, 669 P.2d 191 (Idaho 1983). In Price v.
18
19 Dunn, 106 Nev. 100, 787 P.2d 785 (1990). We now hold that the filing of a motion to set aside a
20 void judgment previously entered against the movant shall not constitute a general appearance. See,
21
e.g., Dobson v. Dobson, 108 Nev. 346, 349, 830 P.2d 1336, 1338 (1992). Nonetheless, since the
22
order was void, a judgment based thereon would likewise be void.. Nelson v. Sierra Constr. Corp.,
23
77 Nev. 334, 364 P.2d 402. Under NRCP 60(b) a motion to set aside a void judgment is not
24
25 restricted to the six months' period specified in the rule. NRCP 54(a) provides that the word
26 "judgment" as used in these rules includes any order from which an appeal lies. Therefore there is no
27
merit to appellants' contention that the motion to vacate the judgment was not timely made. Foster v.
28
- 17
595
1 Lewis, 78 Nev. 330, 372 P.2d 679 (Nev. 6/19/1962). A void judgment is subject to collateral attack;
2 a judgment is void if the issuing court lacked personal jurisdiction or subject matter jurisdiction; See
3
49 C.J.S. Judgments § 401, at 792 (1947 & supp. 1991); 46 Am.Jur.2d Judgments §§ 621-56 (1969
4
& supp. 1991). New Mexico If a court's decision is plainly contrary to a statute or the constitution,
5
6
the court will be held to have acted without power or jurisdiction, making the judgment void for
7 Rule 1-060(B) purposes, even if the court had personal and subject-matter jurisdiction. See, e.g.,
8 United States v. Indoor Cultivation Equip., 55 F.3d 1311, 1317 (7th Cir. 1995) (forfeiture statute
9
required that complaint be filed within sixty days of certain action; failure to meet that deadline
10
meant that court had no power to order forfeiture, and its order was void); Watts v. Pinckney, 752
11
F.2d 406, 409 (9th Cir. 1985) (after judgment awarded, defendant paid, then found out this was
12
13 action in admiralty that should have been brought solely against United States; court held that
14 judgment was void); Compton v. Alton S.S. Co., 608 F.2d 96, 104 (4th Cir. 1979) (judgment by
15
default awarded penalty wages under inapplicable statute; court held that judgment was void, not
16
just erroneous); see also V.T.A., Inc. v. Airco, Inc., 597 F.2d 220, 224-25 (10th Cir. 1979) (noting
17
that judgment can be void if court's action involves a "plain usurpation of power"); Crosby v.
18
19 Bradstreet Co., 312 F.2d 483, 485 (2d Cir. 1963) (court had no power to impose unconstitutional
20 prior restraint on publication of true statements, so thirty-year-old consent judgment was void). In
21
APCA, APCA as a defendant filed a cross-claim against defendant Martinez, but it was void
22
because not served on Martinez. On February 28, 1968, entry of judgment was made on APCA's
23
cross-claim against Martinez. Four years later, Martinez' heirs moved to set aside the APCA
24
25 judgment under Rule 60(b) and in December, 1972, the 1968 judgment was set aside because it was
26 void. No time limit applies where a void judgment is entered. Albuquerque Prod. Credit Ass'n v.
27
Martinez, 91 N.M. 317, 573 P.2d 672 (1978). Since the 1973 judgment was void, the 1976 district
28
- 18
596
1 court was required to set it aside pursuant to N.M.R. Civ.P. 60(b)(4) [§ 21-1-1(60)(b)(4)], N.M.S.A.
2 1953 (Repl. Vol.1970). There is no discretion on the part of a district court to set aside a void
3
judgment. Such a judgment may be attacked at any time in a direct or collateral action. Chavez v.
4
County of Valencia, 86 N.M. 205, 521 P.2d 1154 (1974). At this point we call attention also to
5
6
language found in the opinion in Moore v. Packer, 174 N.C. 665, 94 S.E. 449, 450, noticed by us
7 and quoted with approval in the Ealy case. It was there said: "A void judgment is without life or
8 force, and the court will quash it on motion, or ex mero motu. Indeed, when it appears to be void, it
9
may and will be ignored everywhere, and treated as a mere nullity." All the appellees rely upon this
10
general rule in answer to appellants' challenge that they never took an appeal from the order and
11
judgment setting
12
13 aside the June, 1937 default judgment and decree. The court being without jurisdiction to set aside
14 its earlier judgment and decree, quieting title, appellees might ignore it as a void order or judgment,
15
they say, and for this reason were not required to take an appeal therefrom, and may question the
16
jurisdiction of the court and the validity of the order or judgment at any time. Board of County
17
Commissioners of Quay County v. Wasson, 37 N.M. 503, 24 P.2d 1098; Fullen v. Fullen, 21 N.M.
18
19 212, 153 P. 294; Baca v. Perea, 25 N.M. 442, 184 P. 482; De Baca v. Wilcox, 11 N.M. 346, 68 P.
20 922. In the case of Upjohn Co. v. Board of Commissioners of Socorro County (Stephenson,
21
Intervener) 25 N.M. 526, 185 P. 279, 280, we held a judgment against a garnishee void where
22
service of the writ of garnishment was made by a person other than the sheriff, where we said: "The
23
proceeding is wholly statutory, and compliance with the statute is essential to confer upon the court
24
25 jurisdiction of the res." And held that the court was vested with power to set aside and vacate such
26 void judgment at any time. A void judgment is one that has merely semblance, without some
27
essential element or elements, as where the court purporting to render it has not jurisdiction. An
28
- 19
597
1 irregular judgment is one entered contrary to the course of the court, contrary to the method of
2 procedure and practice under it allowed by law in some material respect, as if the court gave
3
judgment without the intervention of a jury in a case where the party complaining was entitled to a
4
jury trial, and did not waive his right to the same. Vass v. Building Association, 91 N. C. 55; McKee
5
6
v. Angel, 90 N. C. 60. An erroneous judgment is one rendered contrary to law. The latter cannot be
7 attacked collaterally at all, but it must remain and have effect until by appeal to a court of errors it
8 shall be reversed or modified. An irregular judgment may originally and generally be set aside by a
9
motion for the purpose in the action. This is so because in such case a judgment was entered
10
contrary to the course of the court by inadvertence, mistake, or the like. A void judgment is without
11
life or force, and the court will quash it on motion, or ex mero motu. Indeed, when it appears to be
12
13 void it may and will be ignored everywhere, and treated as a mere nullity." Moore v. Packer, 174 N.
14 C. 665, 94 S. E. 449, at page 450. [T]he applicable ground [for relief] would be Rule 60(B)(4), void
15
judgment, under which the failure to move to vacate within one year after the entry of judgment
16
would not be controlling. Classen v. Classen, 119 N.M. 582, 893 P.2d 478, 34 N.M. St. B. Bull. 24
17
(N.M.App. 02/27/1995). The appellants contend that the court lost jurisdiction over the action thirty
18
19 days after the judgment was vacated. They argue that the appellees never appealed the order which
20 vacated the judgment, consequently, thirty days later the court was divested of authority to entertain
21
any motion concerning these parties and the same cause of action, and that for these reasons the
22
motion to amend the cross-claim was improperly granted. This point is not well-taken. The pertinent
23
portions of Rule 60(b) state: On motion and upon such terms as are just, the court may relieve a
24
25 party or his legal representative from a final judgment, order, or proceeding for the following
26 reasons:... (4) the judgment is void.... An order granting a motion for relief under 60(b) must be
27
tested by the usual principles of finality; and when so tested will occasionally be final, although
28
- 20
598
1 probably in most cases it will not be. Thus where the court, in addition to determining that there is a
2 valid ground for relief under 60(b), at the same time makes a re-determination of the merits, its order
3
is final since it leaves nothing more to be adjudged.... Since Martinez never received notice of the
4
cross-claim, the stipulated judgment was void as to him. Therefore, it was completely proper for his
5
6
heirs to move to set aside that void judgment under Rule 60(b)(4). When the original judgment was
7 vacated as to Martinez, the status of the case was as though no judgment had been entered as to him.
8 Wuenschel v. New Mexico Broadcasting Corp., 84 N.M. 109, 500 P.2d 194 (1972); Benally v.
9
Pigman, 78 N.M. 189, 429 P.2d 648 (1967); Arias v. Springer, 42 N.M. 350, 78 P.2d 153 (1938).
10
Rule 60(b) of the Rules of Civil Procedure abolishes the common law writ of coram nobis but
11
authorizes relief from a "final judgment, order, or proceeding" on six specified grounds. Ground (2)
12
13 involves newly discovered evidence; ground (4) involves a void judgment; and ground (6) involves
14 "any other reason justifying relief". Although Rule 60(b) is a civil rule, State v. Romero, supra, held
15
that where a prisoner had served his sentence and had been released, this civil rule could be utilized
16
to seek relief from a criminal judgment claimed to be void. This result was based on an intent to
17
retain all substantive rights protected by the old writ of coram nobis. See State v. Raburn, supra;
18
19 Roessler v. State, 79 N.M. 787, 450 P.2d 196 (Ct. App. 1969), cert. denied, 395 U.S. 967, 89 S. Ct.
20 2115, 23 L. Ed. 2d 754 (1969). Continuing jurisdiction over final judgment. The judgment entered
21
on April 25 was a final judgment. The City argues that Brooks could obtain relief from the writ
22
issued on May 1 only under SCRA 1986, 3-704(B) (Repl. Pamp. 1990), which limits relief to (1)
23
mistake, inadvertence, surprise or excusable neglect; (2) fraud, misrepresentation or other
24
25 misconduct; (3) a void judgment; or (4) satisfaction, release or discharge of the judgment or the
26 reversal or vacation of a prior judgment upon which it is based. However, NMSA 1978, Section 34-
27
8A- 6(E) (Repl. Pamp. 1990), states that "All judgments rendered in civil actions in the metropolitan
28
- 21
599
1 court shall be subject to the same provisions of law as those rendered in district court." Under
2 NMSA 1978, Section 39-1-1 (Repl. Pamp. 1991), final judgments and decrees entered by the district
3
courts remain under the control of such courts for thirty days after entry thereof. Therefore, the
4
metropolitan court retained control of its judgment and had the right to set it aside after granting a
5
6
rehearing on the matter. See, e.g., Nichols v. Nichols, 98 N.M. 322, 326, 648 P.2d 780, 784 (1982)
7 (district court is authorized under Section 39-1-1 to change, modify, correct or vacate a judgment on
8 its own motion) (citing Desjardin v. Albuquerque Nat'l Bank, 93 N.M. 89, 596 P.2d 858 (1979)).
9
The fact that the void judgment has been affirmed on review in an appellate court or an order or
10
judgment renewing or reviving it entered adds nothing to its validity. Such a judgment has been
11
characterized as a dead limb upon the judicial tree, which may be chopped off at any time, capable
12
13 of bearing no fruit to plaintiff but constituting a constant menace to defendant." WALLS v.
14 ERUPCION MIN. CO. 6 P.2d 1021 November 3, 1931. Judge Howards Judgment and Summary
15
Contempt ORder are both void for all the reasons listed above in view of all the pleadings and
16
papers and attachments on file in this matter, especially when one adds in all the filing and materials
17
that should be in the Record on Appeal, but strangely are not. correcting clerical errors in judgments:
18
19 Nevada Alamo Irr. Co. v. U.S., 81 Nev. 390, 404 P.2d 5 (1965) — Supp Channel 13 of Las Vegas,
20 Inc. v. Ettlinger, 94 Nev. 578, 583 P.2d 1085 (1978) — Supp Finley v. Finley, 65 Nev. 113, 189
21
P.2d 334 (1948) — Supp Gottwals v. Rencher, 60 Nev. 35, 98 P.2d 481, 126 A.L.R. 1262 (1940) —
22
Supp Iveson v. Second Judicial Dist. Court, 66 Nev. 145, 206 P.2d 755 (1949) — Supp Kirkpatrick
23
v. Temme, 98 Nev. 523, 654 P.2d 1011 (1982) — Supp Koester v. Administrator of Estate of
24
25 Koester, 101 Nev. 68, 693 P.2d 569 (1985) — Supp McKissick v. McKissick, 93 Nev. 139, 560
26 P.2d 1366 (1977) — Supp Opaco Lumber & Realty Co. v. Phipps, 75 Nev. 312, 340 P.2d 95 (1959)
27
— Supp Silva v. Second Judicial Dist. Court in and for Washoe County, 57 Nev. 468, 66 P.2d 422
28
- 22
600
1 (1937) — II, IX, XII, XIII, XV, XVIi, XIX Smith v. Epperson, 72 Nev. 66, 294 P.2d 362 (1956) —
2 Supp
3
4 CONCLUSION
5 Regardless, the "Judgment" or "Order" here was not appropriately served on the undersigned
6
7
and trips to the RMC to obtain a copy of the Contempt Order, the Guilty Judgment, and the audio
8
9
recording of the Trial and all were either not granted, not provided, or provided in such a delayed
10 manner as to create an unduly prejudicial situation adversely effecting the undersigneds rights
11 sufficient to impermissibly compromise fundamentals notions of fairness and due process.

12
Further, the Order is "rendered" when Judge Howard says it is "rendered", and Judge Howard
13
14
District Court ultimately, the 10 day deadline for filing a Notice of Appeal would not begin running
15
16 until after the 3 day Summary Contempt Order's three day jail sentence concluded. Damn, this
17 stuff is complicated. Sure it nice to see the government goign hard as a mother to protect lil ol'
18
Wal-Mart whom is rumored to be the subject of a documentary about how they have a intricate
19
20
21

24
Dated this February 1, 2012
25
26
/s/ Zach Coughlin_________________
27
Zach Coughlin, Esq.
28 Pro Se Attorney Appellant
- 23
601
1 PROOF OF SERVICE
3
4 On february 1, 2012, I, Mr. Zach Coughlin served the foregoing document by faxing and
delivering and serving upon registered efilers and depositing a true and correct copy in the US Mail
5 addressed to:
6
PAM ROBERTS, ESQ
7 JOHN KADLIC, ESQ
Reno City Attorney's Office - Criminal Division
8 P.O. Box 1900 Reno , NV 89505
9
Phone Number: 7753342050
10 Attorney for Respondent, City of Reno
11
12
13
-----------------------------
14
Zach Coughlin
15 AGENT OF APPELLANT
16
17
18
19
20
21
22
23
24
25
26
27
28
- 24
602
603
604
605
606
607
608


Clerk Accepted: 02-02-2012:08:31:50
Document(s) Submitted: Supplemental ...
COUGHLIN
609
FILED
Electronically
02-02-2012:02:38:43 PM
3
1422 E. 9th St. #2
Reno, NV 89512
4 Tele: 775-338-8118
Fax: 949-667-7402
6

9
ZACH COUGHLIN; )
10 )
Appellant, )
11 )
12
)
)
14 Respondents. )
)
15
16
17 NOTICE TO SET HEARING

18
19
Coughlin, Esq , and files this Notice to Set Hearing based upon:
20
"NRS 189.065 Dismissal for failure to set or reset appeal for hearing.
21
22 1. An appeal must be dismissed by the district court unless perfected by application of the defendant, within 60 days
after the appeal is filed in the justice court, by having it set for hearing.
23 2. If an appeal has been set for hearing and the hearing is vacated at the request of the appellant, the appeal must be
dismissed unless application is made by the appellant to reset the hearing within 60 days after the date on which the
24 hearing was vacated.
26 Rule 19. Appeals from municipal and justice courts.

27
1. All appeals from the municipal or justice courts in criminal cases shall be set for trial or hearing within 60 days of
28 the date of application for setting. A setting beyond 60 days may be made only if approved in writing by the trial judge or
- 1
610
1 the chief judge. If a trial setting is continued by order of the court, the case shall be reset within 60 days of the date of the
order for continuance.
2 2. If multiple settings for appeal trials in any one court department exceed the capacity of that department, settings
shall be made in the designated department scheduled to handle the overflow. If that court’s calendar becomes full,
3 assignment shall be made to any other available department.
5 or the chief judge grants permission to make such settings on other judicial days."
6
7
PLEASE NOTE ON THURSDAY, FEBRUARY 9th AT 10:30 A.M. the undersigned will appear
8
9
before Department 10, either in person or telephonically to Set a Hearing for this matter in
10 compliance with the above authority.

11
12

15
Dated this February 2nd, 2012
16
17
/s/ Zach Coughlin_________________
18
Zach Coughlin, Esq.
19 NV Bar No. 9473
1422 E. 9th St. #2
20 Reno, NV 89512
Tele: 775-338-8118
21
Fax: 949-667-7402
23
24
25
26
27
28
- 2
611
1 PROOF OF SERVICE
3
4 On February 2, 2012, I, Mr. Zach Coughlin served the foregoing document by faxing and
5
6
PAM ROBERTS, ESQ
JOHN KADLIC, ESQ
P.O. Box 1900 Reno , NV 89505
9 Fax number: 7753342420
10
11
12
13 -----------------------------
Zach Coughlin
14
AGENT OF APPELLANT
15
16
17
18
19
20
21
22
23
24
25
26
27
28
- 3
612


Clerk Accepted: 02-02-2012:14:58:17
Document(s) Submitted: Notice to Set
COUGHLIN
613
FILED
Electronically
02-06-2012:04:41:30 PM
Clerk of the Court
614
615
616
617
618
619
FILED
Electronically
02-06-2012:04:41:30 PM
Clerk of the Court
620
621
622
623
624
625
626
627
628
629
630
631
632
633
FILED
Electronically
02-06-2012:04:42:23 PM
Clerk of the Court
634
635
636
637


Clerk Accepted: 02-06-2012:16:47:23
Document(s) Submitted: Reply to/in Opposition
- **Continuation
COUGHLIN
638
FILED
Electronically
02-07-2012:12:19:36 AM
Zach Coughlin Transaction # 2747319
3
1422 E. 9th St. #2
Reno, NV 89512
4 Tele: 775-338-8118
Fax: 949-667-7402
5 Attorney for Pro Se Appellant denied Sixth Amendment Right To Counsel
6

8
9
ZACH COUGHLIN; )
10 )
)
11 Appellant, ) Case No: CR11-2064
vs. )
12
) Dept No: 10
13 )
City of Reno; )
14 )
)
15
Respondent. )
16 )
)
17
18
APPELLANT'S OPENING BRIEF
19
COMES NOW, Appellant, Zach Coughlin, by and through himself as he was denied his Sixth
20
Amendment Right To Counsel, and files this Appellant's Opening Brief: This Motion in is based
21
22 upon the pleadings and papers on file in this matter, both in this appeal and the underlying RMC 11
23 CR 22176 and the following legal argument. The undersigned files this Opening Brief with the intent
24
to file a Supplemental to it or a Notice of Errata with respect to this filing, and a more complete
25
Opening Brief by February 6, 2012. This is being done due to confusion as to whether the “within 30
26
days” deadline, which would seam to fall on Saturday, February 4th, 2012, would allow filing timely a
27
28
- 1 -
Appellant Opening Brief
639
1 Brief on February 6, 2012. In an abundance of caution, this is submitted to at least get something
2 filed.
3
LEGAL ARGUMENT
4
5 Indeed, NRCP RULE 5. SERVICE AND FILING OF PLEADINGS AND OTHER

6
PAPERS requires that:
7
“(a) Service: When Required. Except as otherwise provided in these rules, every order
8 required by its terms to be served,... (b)(2) Service under this rule is made by: (A)
9
Delivering a copy to the attorney or the party by: (i) handing it to the attorney or to the
party; (ii) leaving it at the attorney’s or party’s office with a clerk or other person in
10 charge, or if there is no one in charge, leaving it in a conspicuous place in the office;
or (iii) if the office is closed or the person to be served has no office, leaving it at the
11 person’s dwelling house or usual place of abode with some person of suitable age and
discretion residing thing a copy by electronic means if the attorney or the party
12
served has consented to service by electronic means... The served attorney’s or
13 party’s consent to service by electronic means shall be expressly stated and filed in
writing with the clerk of the court and served on the other parties to the action. The
14 written consent shall identify: (i) the persons upon whom service must be made; (ii)
the appropriate address or location for such service, such as the electronic-mail address
15
or facsimile number; (iii) the format to be used for attachments; and (iv) any other
16 limits on the scope or duration of the consent. An attorney’s or party’s consent shall
remain effective until expressly revoked or until the representation of a party changes
17 through entry, withdrawal, or substitution of counsel. An attorney or party who has
consented to service by electronic means shall, within 10 days after any change of
18
electronic-mail address or facsimile number, serve and file notice of the new
19 electronic-mail address or facsimile number. (3) Service by electronic means under
Rule 5(b)(2)(D) is not effective if the party making service learns that the attempted
20 service did not reach the person to be served. (4) Proof of service may be made by
certificate of an attorney or of the attorney’s employee, or by written admission, or by
21
affidavit, or other proof satisfactory to the court. Failure to make proof of service shall
22 not affect the validity of service.
23
It was reversible error in the underlying matter where the Court: refused to grant a
24
25 continuance of the November 30th, 2011 Trial, failed to provide the Sixth Amendments guarantee of a
26 Right to Counsel both in the petit theft Trial and once even the specter of a Summary Contempt
27
finding was announced. Way too prejudicial to deny the right to counsel then announce the Court
28
- 2 -
640
1 would nail the undersigned with contempt for attempting to zealously advocate on his own behalf.
2 Further, refusing to allow inquiry into the stated retaliatory motives of Wal-Mart and its Asset
3
Protection division, especially vis a vis, Wal-Mart's established practice, even by its managers, of
4
outright lying the the public repeatedly about the terms and effect of the posted Return Policy
5
6
applicable to purchases in Wal-Mart stores. Additionally, prosecutorial misconduct, (suborning
7 perjury, failing to turn over discovery in a timely manner, lying about whether the Reno City
8 Attorney had received anything from the RSIC, etc) justify overturning the verdict. Additionally, the
9
prosecutions improper motive in this retaliatory prosecution stems from a desire to undermine the
10
undersigned's credibility and ability to litigate especially vis a vis the wrongful arrest, negligent
11
hiring training and supervision lawsuit that the Reno City Attorney received warning of well in
12
13 advance of the arrest in this matter. Further improprieties and due process deficiencies in the Reno
14 Municipal Court and its filing office justify overturning the conviction. Additionally, a Notice of
15
Entry of Order here from the RMC is likely required given the Order was complete outside the
16
presence of one of the parties (made in absentia), and therefore rendition of Order is likely not
17
sufficient. Further, the prosecution did not meet its burden to prove any of the elements of the crime
18
19 charged: “(a) Intentionally steals, takes and carries away, leads away or drives away...” Each of the
20 three witnesses contradicted themselves as the material facts, including whether the UPC at issue
21
appeared on both receipts and whether the undersigned provided his driver's license to the RSIC
22
Officers, which the video showed he did, and therefore, the probable cause to conduct a search
23
incident to a custodial arrest is vitiated and perjury apparent by all three witnesses and misconduct by
24
25 the Reno City Attorney. All arguments made below, whether at Trial or in the papers on file or
26 otherwise submitted to the RMC are hereby incorporated by reference.

27
28
- 3 -
641
1 RMC Sec. 8.10.040. - Petit larceny: It is unlawful for any person to take or carry away the
2 property of another with the intent to deprive the owner of his property therein, in any value less than
3
$250.00, and for his conviction therefor, he shall be fined in an amount not more than $1,000.00
4
and/or be incarcerated not more than six months. In addition to any other penalty, the court shall
5
6
order the person to pay restitution.” (Code 1966, § 11.12.003; Ord. No. 2762, § 1, 8-13-79; Ord. No.
7 3866, § 1, 9-25-89; Ord. No. 4815, § 1, 10-28-97; Ord. No. 5058, § 1, 11-12-99) State law reference
8 — Petit larceny, NRS 205.240. NRS 205.240 Petit larceny; penalty. 1. Except as otherwise
9
provided in NRS 205.220, 205.226, 205.228 and 475.105, a person commits petit larceny if the
10
person: (a) Intentionally steals, takes and carries away, leads away or drives away: (1)
11
Personal goods or property, with a value of less than $650, owned by another person; (2)
12
13 Bedding, furniture or other property, with a value of less than $650, which the person, as a lodger, is
14 to use in or with his or her lodging and which is owned by another person; or (3) Real
15
property, with a value of less than $650, that the person has converted into personal property by
16
severing it from real property owned by another person. (b) Intentionally steals, takes and carries
17
away, leads away, drives away or entices away one or more domesticated animals or domesticated
18
19 birds, with an aggregate value of less than $650, owned by another person. 2. Unless a greater
20 penalty is provided pursuant to NRS 205.267, a person who commits petit larceny is guilty of a
21
misdemeanor. In addition to any other penalty, the court shall order the person to pay restitution.
22
[1911 C&P § 374; A 1947, 85; 1949, 127; 1943 NCL § 10324]—(NRS A 1965, 300, 1007; 1967,
23
500; 1969, 531; 1983, 547; 1985, 751; 1989, 1434; 1995, 13; 1997, 342, 1114; 1999, 3109; 2009,
24
25 1243; 2011, 165) NRS 205.251 Determination of value of property involved in larceny offense.
26 For the purposes of NRS 205.2175 to 205.2707, inclusive: 1. The value of property involved in a
27
larceny offense shall be deemed to be the highest value attributable to the property by any reasonable
28
- 4 -
642
1 standard. 2. The value of property involved in larceny offenses committed by one or more persons
2 pursuant to a scheme or continuing course of conduct may be aggregated in determining the grade of
3
the larceny offenses. Grant v. State, 24 P.3d 761 234 LARCENY 234II Prosecution and Punishment
4
234II(B) Evidence 234 54 Weight and Sufficiency 234k57 k. Intent. Nev.,2001 Requisite finding of
5
6
intent to permanently deprive owner of property was supported in grand larceny prosecution by
7 evidence that defendant was seen tucking casino patron's purse into his jacket several times and
8 heading towards lobby and exit of casino. N.R.S. 205.220 , subd. 1, 205.222, subds. 2, 3. Hogan v.
9
State, 536 P.2d 1028 Nev.,1975 There was sufficient evidence of felonious asportations of air
10
conditioner from fenced compound at rear of store to support convictions for grand larceny
11
notwithstanding defendants' assertions that they found the air conditioner outside the fence and
12
13 believed it was abandoned. N.R.S. 205.220 . State v. Phipps, 282 P. 1024 Nev.,1929 Evidence in
14 prosecution for larceny of mining property held not to show codefendant's intent to take, steal, or
15
carry away personal property. State v. Ward, 10 P. 133 Nev.,1886 The facts that defendant took a
16
horse from the premises of its owner without his knowledge, and rode it for a certain distance, and
17
then abandoned it, after removing and concealing the saddle and blanket, are sufficient to justify a
18
19 finding of intent permanently to deprive the owner of his property, although defendant testifies that
20 he had engaged another to take it back, and when he did not appear he expected some one to take it
21
back, or that the animal would stray back. NRS 205.0824 “Deprive” defined. “Deprive” means to
22
withhold a property interest of another person permanently or for so long a time that a substantial
23
portion of its value, usefulness or enjoyment is lost, or to withhold it with the intent to restore it only
24
25 upon the payment of a reward or other compensation, or to transfer or dispose of it so that it is
26 unlikely to be recovered. NRS 205.0832 Actions which constitute theft. 1. Except as otherwise
27
provided in subsection 2, a person commits theft if, without lawful authority, the person knowingly:
28
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643
1 (a) Controls any property of another person with the intent to deprive that person of the property.
2 (b) Converts, makes an unauthorized transfer of an interest in, or without authorization controls
3
any property of another person, or uses the services or property of another person entrusted to him or
4
her or placed in his or her possession for a limited, authorized period of determined or prescribed
5
6
duration or for a limited use. (c) Obtains real, personal or intangible property or the services of
7 another person by a material misrepresentation with intent to deprive that person of the property or
8 services. As used in this paragraph, “material misrepresentation” means the use of any pretense, or
9
the making of any promise, representation or statement of present, past or future fact which is
10
fraudulent and which, when used or made, is instrumental in causing the wrongful control or transfer
11
of property or services. The pretense may be verbal or it may be a physical act. (d) Comes into
12
13 control of lost, mislaid or misdelivered property of another person under circumstances providing
14 means of inquiry as to the true owner and appropriates that property to his or her own use or that of
15
another person without reasonable efforts to notify the true owner. (e) Controls property of
16
another person knowing or having reason to know that the property was stolen. (f) Obtains
17
services or parts, products or other items related to such services which the person knows are
18
19 available only for compensation without paying or agreeing to pay compensation or diverts the
20 services of another person to his or her own benefit or that of another person without lawful authority
21
to do so. (g) Takes, destroys, conceals or disposes of property in which another person has a
22
security interest, with intent to defraud that person. (h) Commits any act that is declared to be theft
23
by a specific statute. (i) Draws or passes a check, and in exchange obtains property or services, if
24
25 the person knows that the check will not be paid when presented. (j) Obtains gasoline or other fuel
26 or automotive products which are available only for compensation without paying or agreeing to pay
27
compensation. 2. A person who commits an act that is prohibited by subsection 1 which involves
28
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644
1 the repair of a vehicle has not committed theft unless, before the repair was made, the person received
2 a written estimate of the cost of the repair. Its was reversible error where Judge Howard Did not
3
comply with the above and the burden of proof was not met in consieration fo the evidence offered.
4
Further, Appellant was refused his opportunity to testify or put on evidence, City of Reno suborned
5
6
perjury, ect, etc. Intent was missing too, and, assumign the accusations are true, anyone consuming
7 that many of those cough drops would not be capable of forming the requisite intent. Driver's license
8 was offered, therefore reversible error to allow basing the search on failure to provide driver's license
9
or sufficent indentifying information to issue a citation. Fruit of poison tree.
10
Appellants incorporates by reference all arguments, filings, correspondence etc made in the
11
trial court or so far in this appeal, especially those in the Opposition to Motion to Dismiss.
12
13
` The 2008 Limited Court Jurisdiction Bench Book and its 2010 Supplement set forth a number
14 of appealable issues in this matter, including:
SUMMARY PUNISHMENT Summary punishment is only permissible for direct contempts (those
15
acts identified in NRS 22.010 committed within the immediate view and presence of the judge).
16 Questions to analyze for Summary Punishment • Is the contempt eligible for summary
punishment? ? Act or omission performed in presence of Court ? Immediate judicial action was
17 required to maintain or restore authority/justice/dignity of the Court ? Was there an order that spelled
out the details of compliance in clear, specific and unambiguous terms so that the person should have
18
readily known exactly what duties or obligations were imposed on him? ? Is the contempt on in
19 which the person has omitted performing an act which is yet in the power of the person to perform? •
What type of contempt exists? ? Civil in which punishment is appropriate? ? Civil in which
20 imprisonment to force performance is appropriate? ? Criminal in which adjudication of a
misdemeanor is appropriate? • What is the sentence imposed? ? Imprisonment in county jail not to
21
exceed 25 days ? Fine not to exceed $500 (payable to county/city treasurer) ? Both above mentioned
22 fine and imprisonment ? If civil , expenses, including attorney fees, of injured party if the contempt
involves disobedience to a lawful order or writ ? Is the contempt one that involves failure to do an
23 act which is yet in the power of the person to perform? If so, is imprisonment in the county jail
necessary or appropriate to force the person to comply with the act? ? Is the contempt failure to
24
appear or testify before a grand jury? If so, imprisonment must cease when the grand jury is no
25 longer empanelled. • Have you completed the written order? (Must have a written order filed) ?
Recites the facts constituting the contempt in the immediate view and presence of the court or
26 judge; ? Finds the person guilty of the contempt; and ?
27
28
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645
1 Prescribes the punishment for the contemp
2 CONCLUSION
3
Based upon the foregoing the undersigned respectfully requests that this Court vacate,
4
overturn, or otherwise set aside the underlying Judgment and Order of Conviction in this matter
5
6
(RMC 11 CR 22176). Appellant Declares under penalty of perjury, pursuant to NRS 53.045, that the
7 assertions in this document are true and correct.
8 AFFIRMATION PURSUANT TO NRS 239B.030

9
10
11
12
Dated: February 6, 2012
13
14 /S/ Zach Coughlin________

Zach Coughlin, Appellant
15
Attorney for Pro Se Appellant denied Sixth Amendment Right To Counsel
16
17 PROOF OF SERVICE
18
Pursuant to NRCP 5(b), I certify that I served a copy of the foregoing Appellant's Opening
19 Brief upon the following party by electronically filing on February 3rd, 2012 and therefore serving
upon registered efiler:
20
Pamela Roberts, Esq.
21
John Kadlic, Esq.
22 PO Box 1900
Reno, NV 89505
23 Attorney for City of Reno
24
Date this February 6rd, 2012:
25
26 /S/ Zach Coughlin

27
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646
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647


Clerk Accepted: 02-06-2012:16:48:03
Document(s) Submitted: Request for Submission
COUGHLIN
648
FILED
Electronically
02-07-2012:09:44:49 AM
3
1422 E. 9th St. #2
Reno, NV 89512
4 Tele: 775-338-8118
Fax: 949-667-7402
6

8
9
ZACH COUGHLIN; )
10 )
)
vs. )
12
) Dept No: 10
13 )
City of Reno; )
14 )
)
15
Respondent. )
16 )
)
17
18
APPELLANT'S MOTION FOR EXTENSION OF TIME TO FILE OPENING BRIEF
19
COMES NOW, Appellant, Zach Coughlin, by and through himself, and files this
20
APPELLANT'S REQUEST FOR EXTENSION OF TIME TO FILE OPENING BRIEF. THIS
21
22 FILING IS BEING RESUBMITTED AS MS. MATHEUS IS STILL REJECTING CRIMINAL
23 CASE FILINGS, DESPITE WDCR: “2012-02-06 23:50:34.0 Subject: Your electronic filing, Re:
24
CR11-2064 - Other Municipal Court Criminal - MO - Mtn for Extension of Time, was rejected by
25
Second Judicial District Court - State of Nevada. Case Number: CR11-2064 Case Type: Other
26
Municipal Court Criminal - MO Document Type: Mtn for Extension of Time Reason(s) for rejection:
27
28 This document was rejected yesterday as the case number on the document is incorrect. The Second
- 1 -
Appellant's Motion for Extension of Time and Page Limit Exception
649
1 Judicial District Court does not recognize case number CR-2064. Please correct the case number on
2 your document and resubmit. If you have any questions, please contact Lori at 328-3114.” Further,
3
Appeals Clerk Matheus rejected an Opening Brief attempt filed last Friday in contravention of
4
WDCR 18.
5
6
LEGAL ARGUMENT
7 WDCR Rule 18. Papers which do not comply with rules. Except in criminal cases and writs
8 arising from criminal cases, filing office personnel shall refuse to file any document or pleading
9
which is not properly signed by all persons, or which does not comply with these rules, Nevada Rules
10
of Civil Procedure, the District Court Rules, or applicable statutes.
11
Appellant has had numerous filings in the criminal matter rejected by the filing office in
12
13 contravention of WDCR 18 and therefore request an extension of time to file this Opening Brief.
14 WDCR Rule 11. Extension or shortening of time. 1. All motions for extensions of time shall
15
be made upon 5 days’ notice to all counsel. Such motion shall be made to the judge who is to try the
16
case, or, if the judge is not in the courthouse during regular judicial hours, to a judge on the same
17
floor who shall set or cause the motion to be set for early hearing. (For the sake of this rule
18
19 Department 10 is deemed to be on the second floor.) 2. Except as provided in this subsection, no ex
20 parte application for extension of time will be granted. Upon presentation of a motion for extension,
21
if a satisfactory showing is made to the judge that a good faith effort has been made to notify
22
opposing counsel of the motion, and the judge finds good cause therefor, the judge may order ex
23
parte a temporary extension pending a determination of the motion. 3. For good cause shown, the
24
25 judge who is to try the case, or if the judge is not in the courthouse during regular judicial hours, the
26 chief judge, may make an ex parte order shortening time upon a satisfactory showing to the judge that
27
a good faith effort has been made to notify the opposing counsel of the motion. 4. Extensions to
28
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650
1 answer or otherwise respond to a complaint shall not exceed 40 days without court approval. The trial
2 judge shall determine the appropriate sanction if this rule is violated. Appellant cites excusable
3
neglect or other circumstances (like opposing counsel in an summary eviction from one's law office
4
based on no cause notice, not nonpayment of rent, commercial tenant in cv11-03628 getting him
5
6
wrongfully arrested and police misconduct and the failre to return security deposit and Appellants
7 recently being a victim of domestic violence in EPO granted in FV12-00188, and FV12-00187 in
8 askign for an extension and page limit exception.

9
WDCR Rule 19. Appeals from municipal and justice courts.
10
1. All appeals from the municipal or justice courts in criminal cases shall be set for trial or
11
hearing within 60 days of the date of application for setting. A setting beyond 60 days may be made
12
13 only if approved in writing by the trial judge or the chief judge. If a trial setting is continued by order
14 of the court, the case shall be reset within 60 days of the date of the order for continuance.
15
2. If multiple settings for appeal trials in any one court department exceed the capacity of that
16
department, settings shall be made in the designated department scheduled to handle the overflow. If
17
that court’s calendar becomes full, assignment shall be made to any other available department.
18
20 or the chief judge grants permission to make such settings on other judicial days.
21
4. In civil appeals from the justice court, appellant shall file within 30 days after the filing of a
22
notice of appeal a written brief containing a statement of the errors committed in the justice court
23
with accompanying authorities which shall not exceed 5 pages. Within 20 days after the filing and
24
25 service of appellant’s brief, respondent shall file a written answering brief which shall not exceed 5
26 pages.
27
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651
1 My mountain bike was stolen right about the time landlord Merliss had NV Eneregy trespass
2 on my property and do an unnoticed shut off of electricity. All the food in my refridgerator went bad,
3
and other damages were incurred. NV Energy asserted privity of contract where the are not allowed
4
to, while being a monopoly supplying an essential Service. www.ShameOnNVEnergy.com
5
6
Further, just last Friday, February 3rd, 2012, NV Energy again shut off Appellants electricty without
7 notice, and now is refusing to allow Appellant to have service started, demanding all sorts of
8 documentation, proof, private, personally identifiable information, and specific forms of

9
“agreements” to which NV Energy, a monopoly, has not right. That cause this Brief to exceed 5
10
pages and forms a basis for this request to allow an extension of time to refine and finish Appellant's
11
Opening Brief.
12
13 Indeed, NRCP RULE 5. SERVICE AND FILING OF PLEADINGS AND OTHER
14 PAPERS requires that:

15
“(a) Service: When Required. Except as otherwise provided in these rules, every order
16 required by its terms to be served,... (b)(2) Service under this rule is made by: (A)
Delivering a copy to the attorney or the party by: (i) handing it to the attorney or to the
17 party; (ii) leaving it at the attorney’s or party’s office with a clerk or other person in
charge, or if there is no one in charge, leaving it in a conspicuous place in the office;
18
or (iii) if the office is closed or the person to be served has no office, leaving it at the
19 person’s dwelling house or usual place of abode with some person of suitable age and
discretion residing thing a copy by electronic means if the attorney or the party
20 served has consented to service by electronic means... The served attorney’s or
party’s consent to service by electronic means shall be expressly stated and filed in
21
writing with the clerk of the court and served on the other parties to the action. The
22 written consent shall identify: (i) the persons upon whom service must be made; (ii)
the appropriate address or location for such service, such as the electronic-mail address
23 or facsimile number; (iii) the format to be used for attachments; and (iv) any other
limits on the scope or duration of the consent. An attorney’s or party’s consent shall
24
remain effective until expressly revoked or until the representation of a party changes
25 through entry, withdrawal, or substitution of counsel. An attorney or party who has
consented to service by electronic means shall, within 10 days after any change of
26 electronic-mail address or facsimile number, serve and file notice of the new
electronic-mail address or facsimile number. (3) Service by electronic means under
27
Rule 5(b)(2)(D) is not effective if the party making service learns that the attempted
28 service did not reach the person to be served. (4) Proof of service may be made by
- 4 -
652
1 certificate of an attorney or of the attorney’s employee, or by written admission, or by
affidavit, or other proof satisfactory to the court. Failure to make proof of service shall
2 not affect the validity of service.
3
4 It was reversible error in the underlying matter where the Court: refused to grant a
5 continuance of the November 30th, 2011 Trial, failed to provide the Sixth Amendments guarantee of a
6
Right to Counsel both in the petit theft Trial and once even the specter of a Summary Contempt
7
8
9
would nail the undersigned with contempt for attempting to zealously advocate on his own behalf.
10 Further, refusing to allow inquiry into the stated retaliatory motives of Wal-Mart and its Asset
11 Protection division, especially vis a vis, Wal-Mart's established practice, even by its managers, of
12
outright lying the the public repeatedly about the terms and effect of the posted Return Policy
13
14
perjury, failing to turn over discovery in a timely manner, lying about whether the Reno City
15
17 prosecutions improper motive in this retaliatory prosecution stems from a desire to undermine the
18
19
20
advance of the arrest in this matter. Further improprieties and due process deficiencies in the Reno
21
23 Entry of Order here from the RMC is likely required given the Order was complete outside the
24
25
26
charged: “(a) Intentionally steals, takes and carries away, leads away or drives away...” Each of the
27
- 5 -
653
1 appeared on both receipts and whether the undersigned provided his driver's license to the RSIC
2 Officers, which the video showed he did, and therefore, the probable cause to conduct a search
3
incident to a custodial arrest is vitiated and perjury apparent by all three witnesses and misconduct by
4
the Reno City Attorney. All arguments made below, whether at Trial or in the papers on file or
5
6
otherwise submitted to the RMC are hereby incorporated by reference.
7 ` The 2008 Limited Court Jurisdiction Bench Book and its 2010 Supplement set forth a number
8 of appealable issues in this matter, including:

9
SUMMARY PUNISHMENT Summary punishment is only permissible for direct contempts (those
10
11
Questions to analyze for Summary Punishment • Is the contempt eligible for summary
12
13 punishment? ? Act or omission performed in presence of Court ? Immediate judicial action was
14 required to maintain or restore authority/justice/dignity of the Court ? Was there an order that spelled
15
out the details of compliance in clear, specific and unambiguous terms so that the person should have
16
readily known exactly what duties or obligations were imposed on him? ? Is the contempt on in
17
which the person has omitted performing an act which is yet in the power of the person to perform? •
18
19 What type of contempt exists? ? Civil in which punishment is appropriate? ? Civil in which
20 imprisonment to force performance is appropriate? ? Criminal in which adjudication of a

21
misdemeanor is appropriate? • What is the sentence imposed? ? Imprisonment in county jail not to
22
exceed 25 days ? Fine not to exceed $500 (payable to county/city treasurer) ? Both above mentioned
23
fine and imprisonment ? If civil , expenses, including attorney fees, of injured party if the contempt
24
25 involves disobedience to a lawful order or writ ? Is the contempt one that involves failure to do an
26 act which is yet in the power of the person to perform? If so, is imprisonment in the county jail
27
necessary or appropriate to force the person to comply with the act? ? Is the contempt failure to
28
- 6 -
654
1 appear or testify before a grand jury? If so, imprisonment must cease when the grand jury is no
2 longer empanelled. • Have you completed the written order? (Must have a written order filed) ?
3
4
judge; ? Finds the person guilty of the contempt; and ? Prescribes the punishment for the contemp
5
6
Appellant could not reasonably be said to have been appropriately or sufficiently informe
7 dof just how he could comply with Judge Howard's contempt warning/finding/order 10 minutes into a
8 6 hour Trial, nor could Appellant or anyone be said to be capable of both zealously advocating on
9
their own behalf while also complying with Judge Howard's menacing and vague Order that
10
contravened fundamental notions of fairness and due process. Appellant requests that all filings,
11
correspondences, and arguments made in the Trial Court or so far in this Appellate Courte be
12
13 incorprorated by reference herein.
14 CONCLUSION
15
Based upon the foregoing the undersigned respectfully requests that this Court grant an
16
extension to refine the Opening Brief and exception to page limit rule in WDCR 19 any other relief
17
this Court deems just. Appellant Declares under penalty of perjury, pursuant to NRS 53.045, that the
18

21
22
23
24
Dated: February 5rd, 2012
25

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655
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656
1 PROOF OF SERVICE
2 Pursuant to NRCP 5(b), I certify that I served a copy of the foregoing document upon the
3
following party by electronically filing on February 3rd, 2012 and therefore serving upon registered
efiler:
4
Pamela Roberts, Esq.
5 John Kadlic, Esq.
6
PO Box 1900
Reno, NV 89505
7 Attorney for City of Reno
8 Date this February 3rd, 2012:

9

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657


Clerk Accepted: 02-07-2012:10:32:32
Document(s) Submitted: Opening Brief
COUGHLIN
658
FILED
Electronically
02-09-2012:12:22:27 PM
Clerk of the Court
659


Clerk Accepted: 02-07-2012:10:38:21
Document(s) Submitted: Mtn for Extension of Time
COUGHLIN
660
FILED
Electronically
02-15-2012:11:42:40 PM
code: 2385 Joey Orduna Hastings
Clerk of the Court
ZACH COUGHLIN, ESQ. Transaction # 2768364
NV BAR NO 9473
1422 E. 9TH ST. #2
RENO, NV 89512
TEL: 775 338 8118
FAX: 959 667 7402
ZACHCOUGHLIN@HOTMAIL.COM
ATTORNEY FOR PRO PER ATTORNEY APPELLANT
SECOND JUDICIAL DISTRICT
ZACH COUGHLIN
APPELLANT
ZXXXXXXXX CR11-2064
10
CITY OF RENO
RESPONDENT
XXXXXXX
XXXXXXXXXX
MOTION FOR APPOINTMENT OF COUNSEL; OR ALTERNATIVELY,
ON APPEAL
Zach Coughlin, Plaintiff/

Appellant
1422 E. 9th St. #2,
Reno, NV 89512
661
ON APPEAL
662
663


Clerk Accepted: 02-09-2012:12:22:48
Document(s) Submitted: Application for Setting - eFile
Filed By: Heidi Howden
COUGHLIN
664
FILED
Electronically
02-22-2012:05:47:25 AM
1 +Document Code: Clerk of the Court
3
1422 E. 9th St. #2
Reno, NV 89512
4 Tele: 775-338-8118
Fax: 949-667-7402
6

9
ZACH COUGHLIN; )
10 )
Appellant, )
11 )
12
)
)
14 Respondents. )
)
15
16
17 SUPPLEMENT TO APPELLANT'S OPENING BRIEF

18
19
Coughlin, Esq , and offers his SUPPLEMENT TO MOTION TO DISMISS. The undersigned was
20
instructed by the Second Judicial District Court to submit a cd/dvd for filing as an exhibit to a filing
21
22 in this manner.
23 TABLE OF CASES AND STATUES CITED
24
STATUTES
25
26 STATEMENT OF THE ISSUES PRESENTED FOR REVIEW
27 Did the District Court Violate Coughlin's 6th Amendment

28
Right to Confront Witnesses When it Prohibited Defense
- 1
SUPPLEMENT TO APPELLANT'S OPENING BRIEF
665
1 ' 24 Counsel from Conducting a Full and Complete
Cross-Examination?
2
Did the District Court Commit Judicial Misconduct
3
Throughout the Trial Which Prejudiced Coughlin's
4 Due Process? .
5 Did the District Court Error by Admitting Inadmissible Hearsay Statements
6 Against Coughlin?
8 In the first 10 min. trial judge Howard disagreed with the defendant on the record as to whether or not
9
the case he was about to try was a complex case rather judge Howard had already made up his mind that he
10
was not on lag but that was rather open and shut any dedicated judge our new house rule on this case before it
11
even started which is kind of impermissible under most notions of due process and fundamental fairness judge
12
Howard banged his fist my gavel mind you but his fist on the bench causing terrible feedback on the
13
microphones recording proceedings exhibited an unbalanced and erratic approach to his rulings in this matter
14
15
that are indicative of a bias or other evident impartiality this is particularly troubling where so many ancillary
16 matters involving the Reno Municipal Court have arisen recently with respect to the defendant including
17 violations of Reno Municipal Court rules by house former prosecutor Lou tale in not only set the case for
18 which he's his own conflict checking procedure should have alerted him to the fact that Coughlin was sailing
19 an entity with which tale shares of office and receptionist and a boom list table as associated with its business
20
that being Nevada court services on about court services website but also where Taylor failed to comply with
21
Reno Municipal Court rule five in filing a motion to withdraw stating with sufficient particularity in writing
22
his rationale for withdrawing rather tale manage to broker a withdrawal from the case behind-the-scenes
23
without hacking do reveal is embarrassing departures from the rules special conduct the complicity of their
24
Reno Municipal Court allowing this is troubling particularly where judge Howard then proceeded to deny the
25
accused is six-member right counsel to bang his this on the bench in an apparent a mosh to the year he's been
26
27 playing football at you and our and where judge Howard informed the defendant that he would have him
28
- 2
666
1 arrested and incarcerated should the defendant continued to attempt to preserve objections for the record on
2 appeal a scant 5 min. into the trial room of the
3 Judge Howard, at 2:31:52 pm in the AT, responded to the pro so accused Defendant arguing that the Sixth
4
Amendment, as interpreted by Ainsgliser requires the appointment of counsel where even the mere possibility
5
of jail time is present under a plain reading of the charge. Judge Howard cited to Scott v. Illinois for his
6
contention that the RMC was not required to provide an indigent like the Appellant any appointed counsel.
7
Under Argersinger v. Hamlin, 407 U.S. 25 (1972), counsel must be appointed in any case resulting in a
8
sentence of actual imprisonment. However, in Scott v. Illinois, 440 U.S. 367 (1979), the Court ruled that
9
counsel did not need to be appointed if the defendant was not sentenced to any imprisonment. It was reversible
10
11 error for Judge Howard and so rule particularly where he ultimately did sentence appellant to three days
12 incarceration. Further this perversion of any holding in Scott versus Illinois on Judge Howard's part is
13 indicative of the troubling lack of fidelity to the true intent of the sixth amendment and fundamental motions
14 of due process and fair play. For Judge Howard to make men's attempts to reconcile his deep desire to
15 sentence to incarceration for the appellant in this matter while also and denying the appellant his sixth
16
amendment right to counsel in the trial court by reaching out to leverage the statute related to summary
17
contempt committed in the course presents indicates a troubling lack of intellectual hon than esty on the court
18
part and further elucidates a disturbing incapability of the court to grasp the importance they should attach to
19
once fundamental right to zealously advocate on their own behalf particularly in a criminal matter were either
20
incarceration is a possibility or as here were both incarceration and severe damage to a property right i.e. a law
21
license will necessarily follow upon a conviction given the dictates of Nevada Supreme Court rule 111 in that
22
23 the charge here petty larceny clearly comes within the purview of Supreme Court rule 111 subsection 6 in that
24 that any offenses for which an essential element involves any type of theft are necessarily defined as a
25 quotations serious offense in quotations within the text of Nevada Supreme Court won't 111.
26 Construction and Application of Sixth Amendment Right to Counsel—Supreme Court Cases. 33

27 A.L.R. Fed. 2d 1 (Originally published in 2009). The U.S. Supreme Court decided that actual imprisonment
28
was the line defining the constitutional right to appointment of counsel in Scott v. Illinois, 440 U.S. 367, 99 S.
- 3
667
1 Ct. 1158, 59 L. Ed. 2d 383 (1979). The petitioner was convicted of shoplifting merchandise valued at less than
2 $150. The applicable state statute set the maximum penalty for such an offense at a $500 fine or one year in
3 jail, or both. The petitioner's conviction was affirmed by the state appeals court and then by the state supreme
4
court, notwithstanding his argument that the Sixth and 14th Amendments to the U.S. Constitution required that
5
the State provide trial counsel to him at its expense. The U.S. Supreme Court affirmed, determining that the
6
Federal Constitution did not require a state trial court to appoint counsel for a criminal defendant unless actual
7
imprisonment was imposed. The court explained that actual imprisonment was a penalty different in kind from
8
fines or the mere threat of imprisonment, and limiting the application of the right to counsel to cases where
9
imprisonment was actually imposed and not just threatened was sound. The court said that the precedent of
10
11 Argersinger v. Hamlin, 407 U.S. 25, 92 S. Ct. 2006, 32 L. Ed. 2d 530 (1972), had proved reasonably workable,
12 but any extension thereof would create confusion and impose unpredictable and substantial costs on the states.
13 Accordingly, the court held that no indigent criminal defendant could be sentenced to a term of imprisonment
14 unless the State had afforded him the right to the assistance of appointed counsel in his defense.
15 In judge Howard's judgment order of conviction in this matter this frankly appalling when considering
16
the lengths to which judge Howard goes to manage to deny an indigent defendant his sixth amendment right to
17
counsel while at the same time entering an order that resulted in the defendants incarceration this is
18
particularly startling and disturbing considering that judge Howard reasoned from the bench at the trial that
19
Scott the Illinois allowed him to deny the indigent defendant his sixth amendment right to counsel in that jail
20
time would not be ordered in this matter judge Howard in no way at that time limited that ruling which he
21
rendered from the bench the term rendered or upon rendition appears in NRS 189.010 and is applicable to the
22
23 deadline upon which criminal appellants must file a notice of appeal as extensively briefed in the motion to
24 dismiss and its accompanying opposition and supplement thereto rendered or rendition essentially means when
25 the court or judge verbally announces something the bench as such judge Howard's oral ruling with regard to
26 the fact that incarceration would not occur in this matter is binding upon judge Howard it is law the case
27 however judge Howard in order incarceration in any mincing attempts to suggest that the fact that the
28
incarceration was for a fine of summary contempt committed in the course presents under NRS 22.010 sub
- 4
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1 three should simply be unavailing particularly where a fundamental constitutional right is involved and where
2 it judge Howard's ruling as rendered from the bench 5 min. into the trial did not limit the application of his
3 ruling in any way as such no incarceration the matter what it stems from is permissible in this matter or
4
anything connected thereto as such this entire judgment order of conviction is void us as the two are
5
inextricably intertwined in fact sixth amendment right to counsel once right to zealous advocacy summary
6
contempt finding and a conviction for the crime alleged herein are all inextricably intertwined in ways
7
disturbing the judge Howard has event such a clear disregard for matters that have such a preeminent
8
importance in the canyon of due process and notions of fundamental fairness further at the trial when after 5
9
min. of proceedings that is to say trial it only been going on just a few scant minutes and a defendant upon the
10
11 first time he tried to preserve and objections for the record judge Howard going quote from 0 to 60 in one
12 second" announced to the defendant in a bullying menacing voice that he would have the defendant clearly
13 custody and the trial continued if the defendant were to continue to try to preserve issues for appeal or
14 objections thereto. The fact that judge Howard is a former prosecutor in addition to judge Garner in a former
15 prosecutor in addition to the fact that at least three of the four appointed defense attorneys that the Reno
16
Municipal Court his contract with our former prosecutors either with the Reno city attorney's office or the
17
Dist. Atty.'s office is unsettling as the appearance created is one of an environment where a cabal of former
18
prosecutors has managed to gain a monopoly of the Reno Municipal Court and work in conjunction with
19
prosecutors from the Reno city attorney's office to essentially leverage the court as a bill collector or the city of
20
Reno in addition to having the ancillary benefit of being able to undermine defame and otherwise unduly
21
burden any citizens who might take issue with the myriad of constitutional violations in deprivations of
22
23 fundamental rights that he Reno Police Department and the Reno Sparks Indian colony carry out on a daily
24 basis and in practically every arrest and search incident to arrest that occurs within this County indeed this
25 spirit of retaliatory arrest and retaliatory prosecution cannot be countenanced by the District Court citizens
26 should not face a guaranteed arrest merely for invoking their constitutional rights yet that is just exactly what
27 happens on a daily basis and the Reno city attorney cannot be said to be unaware this where the fact that a
28
pattern practice habit and custom is carried out within the police force is about the Reno Sparks Indian colony
- 5
669
1 and the Reno police apartment such that any future negligent hiring trainer supervision claims that might issue
2 similar to those that arose in Eoff the city of Reno incident to a wrongful arrest and 42 USC section 1983
3 lawsuit of recent note. As to the former prosecutor cabal appearance at the Reno Municipal Court takes on of
4
late of the four appointed defense attorneys Lew Taitel, Esq., Roberto Puentes, Esq., Keith Loomis, Esq. and
5
Jane McKenna that the Reno Municipal Court has finally admitted to the defendant are the names of the
6
appointed defense counsel three of them are former prosecutors with the Washoe County Dist. Atty.'s office
7
there is some indication that Thomas Viloria. Esq is also associated with the RMC as a defense attorney in
8
some manner, however that has not been confirmed. However, Kelly Viloria, Esq. is a former Washoe County
9
Dist. Atty. it is important to note that the defendant immediately after the arrest in this matter which occurred
10
11 just days after the defendant filed a complaint with the Reno Police Department alleging police misconduct
12 and that time when the Reno city's attorneys office was aware of such a complaint the defendant sought a copy
13 of the police report from the arrest for which the trial in this case involved the Reno Sparks Indian colony
14 repeatedly refused to provide a copy of this report both in response to written and in person request by the
15 defendant for these materials including the conversation with a sergeant haven't seen who repeatedly gave
16
conflicting contradictory statements with regard to the existence of such materials availability thereof and
17
whether or not they had been provided to the Reno city attorney's office the defendant called the Reno city
18
attorney's office and spoke with Reno city attorney deputy Christopher Hazlitt Stevens in the week following
19
the September 9, 2011 arrest Mr. Hazlitt Stevens informed the accused that he Reno city attorney's office did
20
not having materials incident to the arrest and would nine back have any such. Until after the arraignment
21
which was set equal month out from the September 9 arrest for October 10 subsequent productions from the
22
23 Reno city attorney's office indicate that the Reno city attorney's office had received faxes from the Reno
24 Sparks Indian colony it didn't take a genius or Sherlock Holmes to figure this out as fax headers bear witness
25 to that these of the the documents produced by Reno city attorney Pam Roberts bearing complete and again the
26 fax headers with her page numbers and page counts indicate that not everything is been provided in addition
27 indicating that shortly after the September 9 arrest and probably incident to the fuss and sunshine the
28
defendant was bringing to this matter people were busy data Reno Sparks Indian colony Police Department
- 6
670
1 and the Reno city attorney's us particularly in light of the September 7 complaint filed by the defendant
2 alleging police misconduct by the been P which happened to involve some of the very same issues before the
3 court in this matter specifically retaliatory prosecution and retaliatory arrest incident to citizens invoking or
4
attempting to insert their constitutional rights including those guaranteed by the fourth and Fifth Amendment
5
Reno city attorney prosecutor Pam Roberts is a big fan of spelunking in fact Ms. Roberts seems to hate
6
sunshine or what other conclusion could one make upon a review of this record Ms. Roberts seeks to have this
7
appeal dismiss before it even gets off the ground based upon some perverted interpretation of NRS 189.010
8
she lies to this court when she suggests that a CD was not provided to her office and she is gone to great
9
lengths to avoid hearing portion of the audio record wherein judge Howard announced or further rendered his
10
11 order with respect to the deadline to file a notice of appeal in this matter Ms. Roberts has apparently gone so
12 far as to have her e-mail address shut down the one which is reversely been held up to public on the State Bar
13 Nevada's website it undersigned attempted to provide Ms. Howard a strike that provide Ms. Roberts courtesy
14 copy of the audio wherein judge Howard announced that the notice the deadline file a notice of appeal would
15 not begin running until after three days incarceration he ordered incident to the summary contempt finding that
16
judge Howard made justice can't 5 min. into the trial despite the fact that he said such a finding would result at
17
trial continued judge Howard displayed even further just how crafty he can be when he really wants to get
18
something accomplished duet rather than continue the trial which might afford the accused some means of
19
obtaining the exculpatory materials for which unlawful rent distraint was being applied by Richard Hill
20
Esquire incident to the wrongful eviction from the excuse former home law office where in the retaliatory at
21
intent of Walmart and its asset protection staff which had previously been expressly stated by Walmart and its
22
23 asset protection staff could be accessed and provided to the court for the purpose of aiding in the defendants
24 defense of the crime charged in this matter. He transcript of the trial in this matter is almost complete the
25 undersigned urge is the court to refrain from doing that which the Reno Saturday attorney obviously one which
26 is to prevent any sunshine showing on this matter or the troubling lack of checks and balances in the Reno
27 Municipal Court and the problems incident to having a cabal of former prosecutors let loose in the hen house
28
that is the Reno Municipal Court indeed these problems include the fact that the undersigned was denied the
- 7
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1 right by judge Howard it got covered 10 arraignment to know the names and identities of equal or former
2 prosecutors" that either the Reno city attorney or Reno Municipal Court has contracted with wide
3 representation to indigent defendants in matters for the Reno Municipal Court the undersigned in clearly be
4
heard on the record of that arraignment querying judge Gartner a former prosecutor himself much like judge
5
Howard as to his right to know the names of these into individual contracted defenders this was necessary for
6
the purpose of doing complex checks and ascertaining their qualifications and characteristics judge Gartner
7
curtly refused to provide such information further judge Gardner's Marshall and Marshall Mentzel was may
8
seem rude and threatening in response to the undersigned making queries at that time related to the sixth
9
amendment essentially the Reno Municipal Court once people, and there forked out some money and leave
10
11 causing the Reno Municipal Court is marshals and the Reno city attorney as little hassle along the way and as
12 little expense as possible sometimes as here this is accomplished by skimping on things like the sick man right
13 to counsel and involves extreme creativity specially on the part of judge Howard wherein he manages to not
14 only denied the indigent criminal defendant his six-member right counsel where incarceration is ultimately
15 ordered that he also manages to do so where no right to seek review of his summary contempt finding or estate
16
thereof is afforded the accused is important to note that at the conclusion of the trial wearing Ms. Roberts had
17
already gone home and the Walmart is loss prevention associate Fontenot and his two buddies on the Reno
18
Sparks Indian colony police force were milling about in the lobby outside the court spite the fact that two of
19
three witnesses in that group had finished testifying hours previous to the conclusion of the trial and
20
incarceration of the accused pro se indigent defendant could been denied his right to counsel and where the
21
Reno Municipal Court apparently facing such great budget issues that skimping on the six-member right is
22
23 necessary somehow still manage to keep upwards of six court employees working overtime for approximately
24 4 hours so that the matter of such extraordinary public concern that of a Petit larceny trial wearing a candy bar
25 was allegedly liberated from Walmart could be expeditiously addressed back to the October 10 arraignment
26 Gartner refusing by the name of the prospective defenders Lewis tale was appointed to Mr. tales conflict
27 checking procedures did not catch the fact that the defendant here the undersigned Coughlin had actually sued
28
Nevada court services the process server with whom tale shares both in office and receptionist and which list
- 8
672
1 table as associated with their business on the Nevada court services website tale violated Reno Municipal
2 Court rules in seeking withdraw from the matter without file a written motion in that regard only after Taylor
3 been pretty to extremely sensitive and confidential information and files incident the defense this matter tale
4
still is yet to divulge this are in any way document this impropriety instead tales good friend Roberta point as
5
who also subsequently had revealed Coughlin that he has a business relationship with Nevada court services
6
himself mysteriously appeared in Mr. tales status counsel for the same defendant Coughlin in another matter
7
RMC 11 CR 26405 wherein Coughlin was charged with trespassing in connection to the same property
8
involved in the eviction from Coughlin's former home office in Reno justice court case rev 2011 – 00 1708
9
which involve Richard G Hill Esquire signed a criminal complaint for trespass against Coughlin. While
10
11 Coughlin was arrested for trespass upon Hill submitting a sign criminal complaint to the same Reno Police
12 Department officer Chris Carter that admitted to Coughlin that Hill bribes him, the Reno Police Department
13 refused to arrest anyone from Coughlin's former Reno Municipal Court appointed public defender Luis take
14 tolls business partners Nevada court services for their trespass upon Coughlin's former home law offices gated
15 backyard which was caught on tape and can be seen on YouTube right now. It's also very incestuous and
16
confusing that it would really take much than the five pages mentioned in the scores briefing order to spell it
17
out suffice to say Mr. Puentes was recently granted his motion to withdraw from representing Coughlin in the
18
trespass case before Reno Municipal Court by former prosecutor now Reno Municipal Court judge Gartner
19
who just a scant two years ago was working for the Reno city attorney's office who employs Pam Nifong, er,
20
Pam Roberts, who cares not that she is suborning perjury of Walmart witness Fontenot and the two Reno
21
Sparks and incline police officers rest assured whether this appeal is dismissed or not or whether a de novo
22
23 trial is afforded as the undersigned believes it is as no one is argued or tablet that is orders court record and
24 that the hearing date set in this matter should not be treated as a real legitimate hearing date it's entirely
25 possible some sunshine his guests shine on this matter and all the incestuous conflict of interest and self-
26 dealing evident in the matter upon which this appeal is based

27
28
A little sneak peek at the transcript for the case appealed here reveals:
- 9
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1
2 "
3 Beginnings audio transcript at 2:11:56 PM
4 Coughlin: are you having them sit together because they are on the same team?
5 Marshall Mentzel: my courtroom. I put people where I want them.
6 Coughlin: okay but why are they put together?
8 Marshall: all rise department for the Reno Municipal Court staff session the Hon. Judge Howard presiding
9 Howard: be seated everyone
10
11 Roberts: Your Honor last cases city verse Zachary Coughlin 11 CR 22176 Mr. Coughlin would you step forward please
12 Howard all right this is the time and place set for trial in regard to a
13
14 In regard to a heady larceny alleged to been committed on September 9 of this year complaint alleges that said defendant
15 on o and will will and will in no small him as him terribly shaken r about September 9 20 11th hour Walmart 2425 E. 2nd
16 St. city of Reno state of Nevada did take carrying away Walmart property valued at less than $250 with the intent to
17 deprive Walmart of said property said property consisted of cough drops chocolate bar Mr. Coughlin is that your
18 understanding of the charge
19
20 Coughlin:I believe so Your Honor
21 Howard: all right part both parties ready to proceed at this time
22 Robert: Yes, Your Honor
23 Coughlin: no Your Honor I'm not ready to proceed
24 Howard: why not
25 Mr. Coughlin: Well, there is a variety of reasons, Your Honor
26 Howard: you have to speak up if you want me..
27
28
- 10
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1 . Coughlin: yes sir Your Honor, there's a variety of reasons, sir, I would say chief of which is that it unlawful rent distraint
2 is currently being applied to my files that are necessary to defend this case I was evicted in justice court case REV2011-
3 001708 recently, besides having an impermissible rent escrow deposit applied to me in that case
4 Howard:what is that have to do with this case?
5 Coughlin: recently I have been affected all my files
6 Howard: right
7 Coughlin: all my files incident the defense of this case are currently being withheld under in him permissible rent distraint
8 in violation of NRS 40 - 25376 and 118 a.460
9 Howard what else you have other than this what else you have, as a basis for not being prepared?
10 Coughlin: I made numerous attempts to contact the Reno city attorney's office Ms. Roberts in attempts to discuss this
11 matter
12 Howard: Ms. Roberts
13 Coughlin: and I have not been able to reach her
14 Howard or that sound basis for Brenda continuance maybe she doesn't speak to she is not required to Coughlin further
15 there's a good deal of discovery that needs to be undertaken in this regard Walmart has been obstructive, as well as
16 unintelligible
17 Howard: what items of discovery
18 Coughlin: well I'd like to take some depositions as well have them respond to some subpoena duces T comes I had served
19 on them
20 Howard what else
21 Coughlin the same could be said for the Reno Sparks Indian: a this is a complex case in terms you have the Indian colony
22 renting property to Walmart while employing the same police patrolling the property on which they have a financial stake
23 in whether make an arrest there's fourth amendment issues involved in this case as well is 42 section 1983 abuse of
24 process's and police misconduct in terms of attempting to obtain consent an impermissible search through coercive means
25 this is not a simple little case civil recovery abuses are being alleged on the part of Walmart attempted state actors as well
26 I can probably put into words and math Your Honor Huck truly disruptive this eviction it is I was evicted from my home
27 office man attorney in the state of Nevada my client files are curling I don't even know if I should call the my files to my
28
- 11
675
1 clients files are being withheld under an impermissible rent distraint I was sexually assaulted by a bailiff in court the other
2 day
3 Howard in this court
4 Coughlin in justice court
5 Coughlin all of these matters can shipping to an unduly burdensome environment in which by that ability to defend this
6 case has been unduly prejudice in the extreme
7 Howard I thank you amended to my request to continue I guess whether this is a complex case is in the eye of the
8 beholder I don't typically find that these matters are as complex as you've indicated they are on that as well that much of
9 the argument that you made here relating to sexual assault of a bailiff and another core your inability to possess control
10 your client files have no relevance in my mind to proceeding with the charges and petty larceny alleged to have occurred
11 at Walmart on September 9
12 Coughlin not just my client files or materials needed to defend this case are being withheld
13 Howard I interrupt you sir don't interrupt me
14 Coughlin yester
15 Howard additional note that the last hearing November 14 the city was present with three witnesses the matter was
16 continued initially indicated that we would note Mr. Coughlin's failure to appear we ordered a bench warrant and $1000
17 cash bail only to discover unfortunately for Mr. Coughlin was in custody so the matter was reset will will I think there's
18 been sufficient time to prepare for trial in this matter so we will proceed with trial all witnesses please stand rich array can
19 be sworn please
20 Coughlin if I can just know my objections for the record will
21 Howard standing objections
22 Coughlin Ms. Howard has agreed to a continuance submitting a written agreement to the continues this matter
23 Howard Ms. Roberts
24 Roberts he initially had asked for a motion to continue sometime ago I went was for the 14th and I did not object at that
25 time am I think you sent me an e-mail after the 14th and I said I would not object but Your Honor so at that time I did not
26 object he has filed filed additional motions with additional allegations that I think should be stricken and not considered
27 by this court and I'd like to withdraw my lack of opposition to continuance
28
- 12
676
1 Howard will in any event this court is not going to agree to the stipulation if there was a stipulation to continue without
2 witnesses witnesses here for second time they're ready to proceed this case going forward they will judge but will swear
3 the witnesses
4 Marshall G swear to tell the truth and nothing but the truth
5 witnesses yester
6 Marshall evolved and sworn
7 Howard all right Mr. Coughlin do I need to go over the here today?
8 Coughlin yester and Howard the city has a burden of proof and as such will allow Ms. Roberts to proceed with its case in
9 chief initially she can do so by calling one more witnesses to the witness stand you have an opportunity to cross examine
10 each of those witnesses once she has completed she can honestly offer any physical or documentary evidence that she
11 feels is relevant obviously subject to any objections that you might have to relevancy initiatives by this court wants the
12 city has concluded its case you will have not Saturday to present a defense case I highlight the word opportunity because I
13 think you understand there is no requirement that you present any evidence whatsoever and back should you choose not
14 to testify this court there's no inference as to your guilt or urine hundred cents based on your decision not to testify on the
15 other hand you have an absolute right to offer testimony in the form of witnesses including yourself realizing that each of
16 those witnesses will be subject to cross-examination by the city attorney in fact if you have any additional evidence
17 physical or documentary that you would like me to review in most circumstances I will do so subject once again to any
18 objections that the city attorney and he might have to that evidence once the two of you have submitted your respective
19 cases I will allow both of you to make closing arguments once concluded this court will render a decision as your guilt for
20 your innocence do understand?
21 Coughlin I do have a question Your Honor the couple you mentioned that I would be able to present evidence if that
22 evidence is being withheld from me at this point and it's pending a stay in motion for return of personal property in justice
23 court I would be precluded from action accessing that evidence?
24 Howard I've ruled on that already have I not
25 Coughlin it sounded like you said it didn't matter
26 Howard I don't find that it's relevant to go forward with the trial today
27 Coughlin so if I have video evidence of retaliatory intent by Walmart
28 Howard you should've brought it with you today
- 13
677
1 Coughlin but if it's being withheld impermissibly under the law
2 Howard: we are going forward today I have addressed the issue you can bring it up on appeal if you feel that the decision
3 of the scores in proper understood
4 Coughlin yester Your Honor yes if I question I did with
5 Howard Mr. Coughlin lets you and I have a agreement today that we will be respectful of one another you can tender any
6 objections that you may have I do not want you to be repetitious if you made an objection or a presentation and I've ruled
7 on it except that and let's move on to understanding I do however
8 Coughlin I do however to the extent that you've told me that my life and career are not worth a continuance because it
9 might cost Walmart associate another trip to the court house I don't see we are being respectful of me Your Honor
10 2:27 PM
11 Howard very good but proceed
12 Roberts Your Honor Ryan can invoke exclusionary rule asked Thomas and Tina is by
13 Coughlin Your Honor FICA just interject and address a couple preliminary motions in limine and exclusionary motions
14 Howard got
15 Coughlin won't ask any of the discovery that there Reno city attorneys provided be excluded under them motion in
16 lemonade exclusionary rule and that we fully briefed the issues there and if before any such such discovery is admitted in
17 evidence
18 Howard which emotional lemony
19 Coughlin to exclude the the written statements of Mr. Fontenot and the
20 Howard will on what basis do like often that their violative of the fourth amendment
21 city
22 Howard city a response
23 Roberts I think he is articulate how they invoke the fourth fifth amendments rather than just make bald assertion that
24 they've violative will
25 Howard well and good and denied a request many in NRS 170 4125 motions are required to be made prior to trial you
26 failed to do that in written form on knock in or register them at this point in time because there have the obvious effect of
27 continuing this preceding today and I think that's where you're going not request that
28 Coughlin and I'll just Internet injection
- 14
678
1 Howard I want to hear anything further is denied
2 Coughlin winey dinner my objections to the records are mad do so
3 Howard Mr. Coughlin and giving you fair warning if you continue to persist in this line of performance I'm going to hold
4 you in contempt 2:29 PM
5 Coughlin I won't be bullied into and not entering my objections on the record new line Howard this matter will be
6 continued because you're going to be placed in custody now you can giving fair warning let's proceed
7 Coughlin Your Honor may I enter my objections in the record to preserve them for the record on appeal
8 Howard go ahead
9 Coughlin seems as though you've just told me that I may not because you just told me you are going to have to be arrested
10 if I do so I am a little scared to do that at this point Your Honor and I move for your recusal from this case on that basis
11 Howard
12 Coughlin paroles
13 Howard denies
14 Coughlin okay then can I enter my record and state the basis for my objections for the motions in limine
15 Howard Mr. Coughlin let's proceed Baker objections on the record now go ahead
16 Coughlin okay citizen originally get angry I believe I have. Those motions submit I believe I have submitted those
17 motions in writing
18 Howard and they have been denied
19 Coughlin well it seemed as though a second ago Your Honor said that they had not been submitted in writing
20 Howard: all right (pounds fist on desk making very loud sound! Microphone now functions with feedback for an extended
21 period of time )
22 2:30:6: PM:
23 Coughlin further there is a coercive attempt to procure consent to a search based upon not consenting. Probable cause was
24 buttressed upon a failure to not consent to search which as you stated earlier Your Honor asserting Fifth Amendment or
25 fourth man right cannot be used to infer evidence of guilt will or to buttress a probable cause finding for a search
26 particularly for a search that occurs prior to arrest
27 Howard: anything further?
28
- 15
679
1 Coughlin I do I am terribly shaken by what you said to me, Sir, and it's affected my ability to concentrate right now and
2 defend my case given the 0 to 60 in one second approach that I have witnessed you take with me today in terms of
3 threatening me with content upon the first attempt I believe I made to preserve and objections for the record further I
4 believe my motion for reconsideration for counsel was never ruled on there is a six amendment right to counsel where the
5 possibility of jail time is
6 Howard: your initial motion has been previously denied all denied again in regard to motion for counsel all denied again
7 for the record that is founded upon Scott versus Illinois which is that an injured event and visual as you claim you are if
8 they are not going to be sentenced to jail time there is no requirement of the appointment of counsel..."
10
11
12 That's just a taste in the transcript will reveal much of interest to the District Court and in fact much for which the District
13 Court likely has some liabilities should it seek to turn a blind eye to the due process deficiencies endemic to that which
14 occurs on a daily basis in the Reno Municipal Court. Further it's disturbing to have that the Reno Municipal Court has
15 clearly submitted to the District Court a record on appeal but is entirely incomplete and attempts to thwart the
16 undersigned's attempts to expose some of the problems in due process deficiencies prevalent within the Reno Municipal
17 Court at this time in addition to the various factual and legal bases for this appeal the undersigned has this court forced the
18 Reno Municipal Court to provide actual one page per page reproductions of the Iowa means all of them at the
19 undersigned sheet approval file from Reno Municipal Court for office supervisor Donna Ballard instead of these
20 decidedly illegible four pages per page versions additionally incorporated by reference are all the arguments factual and
21 legal assertions made within the opposition and any other filings in this or the trial court the opposition the motion to
22 dismiss filed by Ms. Roberts further as this court has made clear to the undersigned in other cases the failure to oppose a
23 motion will be taken under the Pope case and district court rule 13 as admission of the validity of the arguments made and
24 for which no opposition was provided in that regard Ms. Roberts court refusal to respond to any of the matters set forth in
25 the undersigned's recent filings in this case should r result in the same types of admissions that the undersigned has had
26 found as rising against him in other cases in Department 10, further is troubling that were some departments prefer to
27 decide cases on the merits other departments indicate to certain litigants that NRCP 6(e) does not accord litigants an
28 additional three days to respond to notions etc. where electronic service has occurred despite the plain reading of that rule
- 16
680
1 indicating that it does. Also, see Deboer. The undersigned signed a test under penalty of perjury that upon information
2 believed to factual legal assertions made herein are true to the best of his knowledge although admittedly this recitation
3 given the exigencies and Harrington Reno city attorney Roberts was about intention to make sure this case never sees
4 the light of judicial review.

5
6 Additionally judge Howard admitted he was remiss not informing the undersigned of his right to appeal
7
respect to the conviction the Petit larceny charge however judge Howard could be said to have attempted to
8
mislead the undersigned with respect to whether or not he would have any right to appeal the summary
9
contempt finding as upon being queried in that regard judge Howard denied that any such review would be
10
accorded in curtly stated that he was going forward with that despite his "saddened by the extent to which
11
doing so would prejudice the undersigned engaging criminal defendant attorneys clients cases.
12
Notes from review of Record on Appeal
13
14 Clearly the Record on Appeal from the Reno Municipal Court is missing much of what Coughlin filed.
15 The RMC expressly gave Coughlin permission to file by email rather than fax. That permission cannot
16 reasonably be said to have been revoked prior to December 20th, 2011. As such, the full "one page per page"
17 production of the various filing Coughlin submitted to the RMC (whith the express written permission of RMC
18 Filing Office Supervisor Donna Ballard) shoudl be included in the Record on Appeal, not the "four page per
19
page" version that has been scanned n by the RMC in a manner to make it especially illegible.
20
21
22
The undersigned is filing now (attached as Exhibit X) a copy of the Record on Appeal, which the
23
RMC has apparently title "APPEAL PROCEEDINGS FROM MUNICIPAL'S COURT" (which includes on
24
bates stamped page 2 a "CERTIFIED COPY OF DOCKET".
25
26 Page 9 of the ROA reveals the "ARREST REPORT AND DECLARATION OF PROBABLE
27 CAUSE" filled out by Reno Sparks Indian Colony (RSIC) Officer Cameron Crawford. Crawford perjured
28
- 17
681
1 himself with his testimony at trial in this matter (and Reno City Attorney Pam Roberts suborned his perjury in
2 violation of numerous Rules of Professional Conduct and prosecutorial standards).
5
Crawfords testimony is littered with lying and or sloppy errors, justifying overturning the conviction in this
6
matter. At 5:54 pm on the audio transcript from 11/30/11 in RMC 11 CR 22176 (AT) Cameron incidates that
7
the UPC for the "cough drops" Coughlin was accused of stealing "did not appear on the receipt" of the items
8
Coughlin actually purchased:
9
Crawford: I did check for the UPC, yes, just the numbers
10
11 Coughlin: for which?
12 Cr: For both.
13 Co: For Both? So, now you're saying that the UPC for the cough drops did not appear on the receipt?
14 Cr: Correct.
15 Co: So, if the UPC for the cough drops does appear on the receipt, that would make your testimony, inaccurate
16
or unreliable?
17
Cr: I guess. I don't know.
18
Co: You guess?
19
20
21
22
23 Also at 6:05pm Crawford amdits (and that when he showed up to the scened, Walmart's Frontino
24 already had a Criminal Complaint filled out. This directly contradicts Frontino's earlier testimony that day that
25 Frontino did not know Coughlin's name prior to Crawford receiving it from Coughlin, and that Frontino did
26 not have a Criminal Complaint filled out, with Couglhin's name inserted into even prior to Crawford and
27 Braunworth showing up to investigate. Frontino clearly offered perjured testimony in that regard. THIS
28
DIRECTLY CONTRADICTS Frontinos ealiery tetiomy that he didnotknow Coughlin's nme priorto rawford
- 18
682
1 getting it from Coulhin. Furter, this implicates Frotino for perjruyeve further i consideration of te fact tat
2 Frontino lied wene idicated tat he id ot ave a seetofc paperwih Coughln's nam isat ext to Couhli
3 wimmediatelwenFrontinoescorted Coughlin backto Walmar'ts nterrogation room

4
6
At 6:06 pm AT Crawford indicates that he only conducted the search of Coughlin's pockets after he placed
7
handcuffs on Coughlin.
8
9
Further, Crawford clearly performs an impermissible search of Coughlin's bag on the "AP OVERVIEW-
10
11 9/9/2011" video (hereinafter "AP Overview", see attached as Exhibit X) at 9:28:30, well prior to any cuffs
12 being put on and well prior Crawford searchign in Coughlin's pockets. It is this bullying, menacing approach,
13 combined with Crawfords oft exhibited willingness to bend the rules as to the Bill of Rights (when he is even
14 aware they exist) that is truly troubly, particularly where it is the same entity that is paying Crawfords check
15 that is renting the land to Wal-Mart. Crawford can be seen at various points in the AP Overview video jab
16
stepping towards Couglin, over and over, in an overly aggressive fashion, with the standing Crawford jutting
17
his crotch towards the sitting Coughlin's face, over and over, in some sort of precursor to an apparent bull rush.
18
It is ridiculous to watch.
19
20
Further, earlier in this "AP Overview" video at 9:24:27 pm Coughlin can clearly be seen responding to
21
Crawfords request for Coughlin's driver's license by giving Crawford Coughlin's driver's license. Crawford
22
23 lied about this at trial, and even asserted that he was unable to issue a citation to Coughlin in light of
24 Coughlin's refusal to provide Coughlin's drivers license. However, the Arrest Report and Probable Cause
25 sheet Crawford filled out (see the ROA page 9) clearly show that Crawford had Coughlin's driver's license
26 number (which he got from the driver's license Coughlin gave Crawford, as shown in the AP Overview video
27 at 9:24:24 pm). Further, as indicated on the probable cause sheet, Crawford wrote down the address for
28
Coughlin from Coughlin's driver's license: 121 River Rock St. Reno, NV 89501. Additionally, Crawford
- 19
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1 grabs Coughlin's shopping bag from out of Coughlin's hands at 9:24:36 pm, in an impemissilbe show of
2 dominance and abuse of power, occuring well prior to any "technical" point of arrest. Crawford tried to
3 describe this process as Coughlin "voluntarily" submitting to a sort of weapons frisk, however the video
4
reveals something far from a voluntary encounter, with Crawford himself committing a crime by grabbing the
5
bag out of Coughlin's hands, then lying about it in his report and subsequently at Trial. Further, Crawford
6
goes beyond a simple "pat down to check for weapons" when he pulls Coughlin's hat off of Coughlin's head at
7
9:25:09 pm.
8
Crawford received Coughlin's driver's license from Coughlin at 9:24:27 PM in the AP Overview
9
video. The video clearly reveals it is Coughlin's State of Nevad drivers license Coughlin hands to Crawford,
10
11 which Crawford subsequently called into the Incline Dispatch Center (which contracts with the RSIC) to run a
12 check for priors using Coughlin's name and drivers license number. Upon receiving the driver's license,
13 Crawford looks at it and pins it to a clip on his front right shirt pocket, shortly before conducting a pat down of
14 Coughlin. At 9:24:30 pm the female hispanic Wal-Mart employee re-enters to small 10 by 10 foot confined
15 interrogation room, making it 2 RSIC Officers and two Wal-mart AP Associates/supervisors in the room with
16
Coughlin. At 9:24:50 pm, Walmart's Frontino can clearly be seen planting somethign into Coughlin's
17
shopping bag. Next at 9:25:18 pm, another male, caucasian Walmart AP Associate enters this small, confined
18
interrogation room, making it five on one.
19
20
At the beginning of what was provided by the Reno City Attorney as the AP Overview video, at
21
9:17:36 pm, Frontino enters the interrogation room ahead of Coughlin, whom enters with the shopping cart
22
23 and bag of some $85 worth of purchases he had just paid for. In the lower right hand corner of the screen
24 clearly visibile is a computer monitor and printer atop a desk. Atop this printer is a CD/DVD disk in a
25 white sleeve. Frontino and an another Walmart AP Associate are in the room with Coughlin seconds later.
26 AT 9:17:45 Frontino reaches into the shopping cart and pulls what appears to be a brown wrapper of some sort
27 out. This wrapper is clearly set in the middle of a near empty shopping cart (Coughlin's $85 worth of purchase
28
all fit within a singular small white plastic shopping bag which. This brown wrapper does not have anything
- 20
684
1 atop it obscurring it in any way where it was in the shopping cart prior to Frontino pulling it out. Upon
2 information and belief, as is standard operating procedure for Walmart's AP personnel in this situations, the
3 unnamed Walmart AP Associate can be seen pressing record on his record device at the 9:17:58 mark, though
4
Walmart would subsequently deny having any such audio records and would further fail to respond to
5
Coughlin's Subpoena duces tecum.
6
8
At the 9:18:55 pm mark a Walmart Customer Service Manager ("Matt") in an Oakland Raider's jersey enters
9
the room. Frontino attempts to give this CSM the items he believes were stolen to this CSM, along with a red
10
11 bag of M&M's. However, Frontino's attempt to include this bag of M&M's in what is delivered to the CSM
12 (who, obstensibly goes off with the items to create a "receipt" of the allegedly stolen items) is rebuffed by the
13 unnamed Walmart AP Associate also in the room at the time. At Trial, Frontino testified that this Associate
14 was not present during the relevant times, as he was "on break".
15
16
At 9:19:09 Frontino is seen opening and reachign into the left upper drawer of his desk and pulling out
17
a clipboard with paper affixed to it. From this time until a full four minutes later at 9:23:15 when the RSIC
18
Officer's Braunworth and trainee Crawford arrive, Frontino can be seen threatening and attempting to
19
alternatively intimidate Coughlin and offer Coughlin "deals" whereby an admission will be treated with
20
lenience in the form of "letting you go" . Unnamed can be seen adjusting his recording device and walkie talk
21
at 9:22:34 pm. At 9:24:11 pm Frontino pulls out a sheet of paper from a file in his lower left desk drawer. At
22
23 9:24:32 a hispanic female Walmart Supervisor enters the room, making the total 2 Walmart employees, and
24 two RSIC Officers and Coughlin in a 10 foot by 10 foot room. While jutting his crotch forward into the sitting
25 Coughlin's face, Crawford grabs the plastic bag with Coughlin's purchases out of Coughlin's lap and demands
26 that Coughlin allow him to do a "pat down" to check for weapons. This weapons check "pat down" beginning
27 at 9:25:00 pm is overly long and involves much manipulation and rubbing of Coughlin's pockets, well beyond
28
that reasonably necessary to assure the suspect did not have a weapon.
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685
1
2 Crawford lied about whether Coughlin would provide his driver's license because he is sneaky and
3 dishonest. Crawford knew that the law in Nevada does not allow for an Officer like Crawford to arrest one
4
accused of a misdemeanor not committed in the presence of the officer. In such situations, an Officer may
5
issue a citation, but not conduct a custodial arrest. Without a custodial arrest, the officer is unable to perform a
6
search incident to an arrest. However, Crawford badly wanted to perform such a search incident to arrest here,
7
and so he lied about whether Coughlin provided his driver's license. Then, at Trial, Crawford lied about just
8
how he was able to get Coughlin's drivers license number, address, date of birth adn teh exact height and
9
weight listed on Coughlin's drivers license if Crawford did not receive the driver's license form Coughlin upon
10
11 request. It is particularly troubling that Crawford lied there, saying that he received all that information at the
12 Washoe County Jail. This is patently false. Crawford showed up to the jail with Braunworth, transferred
13 custody of Coughlin to the jail, and left shortly thereafter. Coughlin was present the entire time that Crawford
14 was at the jail and no such documentation was provided by the jail to Crawford, and Crawford did not fill out
15 any further paperwork while at the jail. Further, if that really was the case, then why wouldn't the Jail have
16
provided Crawford Coughlin's sociial securty number (that is called for on the Arrest and Probable Cause
17
sheet Crawford filled out)? The same could be asked for the other blanks askign for information on that form,
18
including the suspects: place of birth, home phone, business phone, next of kin, ocupation and business
19
address, etc., etc.
20
21
Further, and this is important for jurisidctional purposes considering one with any hint of tribal or
22
23 Native American blood who is accused of a crime of this nature while on tribal land is only triable in Tribal
24 Court, Crawford lied when filling out this Arrest Report and Declaration of Probable Cause (hereinafter
25 ARDPC) when he indicates that Coughlin's race is "White" and his ethnicity is "Non-hispanic". Coughlin did
26 not indicate what race or ethnicity he is to Crawford or anybody else on this date. Crawford made the
27 expedient choice and put down his own opinion about Coughlin's race and ethnicity. The conviction is void
28
for lack of jurisdiction in that regard.
- 22
686
1
3 Further on page 9 of the ARDPC, Crawford swears: "The undlersigned, Kameron Crawford, a police officer,
4
of RSIC, hereby declares under penalty of perjury that the above-named defendant has been arrested on
5
probable cause and is subject to detention for the above-iisted offense(s). Either personally or upon
6
information and belief this officer leamed the following facts and circumstances which support the arrest and
7
detention: On 9/9/11 at about 2121 hours, I responded to 2425 E. 2nd St. Reno, NV 89502 for a petit larceny.
8
Upon my arrival I met with asset protection associate Thomas Frontino who made a citizens arrest for petit
9
larceny. Frontino was in possession of the stolen items."
10
11
12 It is not clear at all how Frontino could have "been in possession of the stolen items" without having
13 conducted a "search incident to" "citizens arrest" (which, as both Wal-Mart's Frontino and Crawford testified,
14 is against Wal-Marts policy and did not occur here. This type of sloppy and reckless approach to evidence
15 gathering and police work pervades Crawford's approach. Further, there was no testimony offered that
16
Frontino made a "citizens arrest" and this ARDPC was not included in the copy of the Criminal Complaint
17
served on Coughlin and it was not introduced into evidence at Trial. Further, Coughlin's driver's license
18
number is statutorily defined as a piece of personally identifiable information and as such should be redacted
19
from the Record on Appeal and any other documents in the public record.
20
21
The "fruits" of the impermissible search by Crawford must be subject to the exclusionary rule as
22
23 clearly, nothing in this ARDPC could reasonably be said to give Crawford probable cause to conduct a search
24 incident to arrest, particularly where the alleged conduct upon which this misdemeanor charge stems from did
25 not occur in the officer's presence. This is particularly true given the absolute lack of anything in the ARDPC
26 that could be said to state, with any degree of specificity or particularity, just what exactly is was that formed
27 the basis for the finding of probable cause, other than completely conclusory and circular assertsion made only
28
by the preprinted text of the ARDPC itself. Simply put, this is robo-police work at its absolute worst. The
- 23
687
1 menacing, lunging posture Crawford took throughout the overly long interrogation in a back room at Wal-
2 Mart, which, curiously, was taped by two video cameras, yet was "supposedly" not not audio recorded by
3 either Wal-Mart, or any of the three AP associates or one Store Manager who were in and out of the room. AP
4
worker Frontino and a hispanic female Wal-Mart supervisor can be seen in the AP Overview video givin each
5
other a "high five" at 9:24:50 pm. Hopefully that "high five" will be worth it to Wal-Mart for the ensuing
6
rounds of litigation that will undoubtedly stem from this wrongful arrest, which will likely include, but not be
7
limited to claims for wrongfull arrest, defamation, conspiracy, retaliation, fraud, etc., etc.
8
10 STATEMENT OF THE CASE
11 Nature of the Case
12
13
Course of Proceedings in the District Court
14
15
16
17 STATEMENT OF THE FACTS
18 T
19
20
SUMMARY OF ARGUMENT
21
22
Appellate issues involving a purely legal question are reviewed de novo.” Wyeth v. Rowatt, 126 Nev.
23
24 ––––, ––––, 244 P.3d 765, 775 (2010).
25 Wal-Mart did not present any evidence of fingerprints, or produce the actual cough drop boxes or
26
chololate bar wrapper.
27
28
- 24
688
1 We generally review a district court’s decision to admit or exclude evidence for an abuse of
2 discretion, Hernandez v. State, 124 Nev. 639, 646, 188 P.3d 1126, 1131 (2008), but to the extent the
3
evidentiary ruling rests on a legal interpretation of the evidence code, de novo review obtains. See
4
United States v. LeShore, 543 F.3d 935, 941 (7th Cir. 2008).
5
7 A
8
The Trial Court admitted rank hearsay violating Coughlin's right to confrontation by
9
an unidentified declarant.
10
11 T
12
13 There was Insufficient Evidence to Support Coughlin's Conviction for
14 Petit Larceny and for the Summary Contempt finding as well. Further clear error was present in mnay
15
respects here and the trial court committed reversible Error by Admitting Inadmissible Hearsay
16
Statements
17
Against Coughlin?
18
To satisfy the requirements of the confrontation clause , if the State seeks to introduce
19
hearsay statements against a criminal defendant, such evidence must bear adequate indicia of
20
21 reliability by either falling within a firmly rooted hearsay exception , or the State must
22 demonstrate that the statement possesses particularized guarantees of trustworthiness. If the

23 statement does not fall within a firmly rooted hearsay exception , the statement is "presumptively,
24
unreliable and inadmissible for confrontation clause purposes ." Ramirez v. State, 114 Nev. 550,
25
958 P.2d, 724, 729 (Nev. 1998) (citations omitted).
26
The Trial Court admitted an improper hearsay statement during the testimony
27
28
- 25
689
1 of Frontino. It was clear error for Judge Howard to allow Frontino to announce rank unspported
2 hearsay that actually demonstrates Frontino's perjury, for the purposes of discrediting the accuses,
3 while at the same time repeatedly refusing to allow any inquiry into WalMarts expressly stated
4
retaliatory intent and expresses intention to abuse process against the defendant here. Further
5
subpoenas and subpoena duces decums were file in this matter yet Walmart and it employees did not
6
show up or otherwsie respond or produce these materials.
7
Whenever .............. a hearsay statement by a non-testifying
8
declarent that does not come within any exception to the
9
hearsay rule....is admitted against a criminal defendant, there
10
11 is presumptively a confrontation clause violation , subject only
12 to the prosecutor's ability to meet its burden of showing that
13 the circumstances under which the statement was made gave it
14 adequate particularized guarantees of trustworthiness. Id at

15 729.
16
V. Did the Prosecution Commit Prosecutorial Misconduct by suborning perjury, lying about whether
17
they had already received materials from teh RSIC, failign ot provide all exclupatory materials, or
18
recklessly ignoring all the holes in Walmart and the RSIC PD's stories?
19
The Trial Court Violated Coughlin ' s 6th Amendment Right to
20
Confront Witnesses When it Prohibited Defense Counsel from
21
Conducting Full and Complete Cross -examination?
22
23 The cornerstone of our criminal justice system is that the accused enjoys the right to
24 confront all witnesses against him. U.S. C. Const p. amend. 6. The Constitutional right of crossexamination
25 may be a defendant's only recourse to refute evidence against him. When a witness
26 gives testimony that is false or evasive the confrontation clause is satisfied only by giving the
27 defense full and fair opportunity to probe and expose these infirmities through examination.
28
Pantaro v. State, 138 P. 3d 477 (Nev. 2006).
- 26
690
1 TTrial Court's have wide discretion to control crossexamination
2 that attacks a witnesses general credibility,
3 however a trial court 's discretion is ...narrowed or bias

4
(motive) is the object to be shown and the examiner must be
5
permitted to elicit any facts which might color a witnesses
6
testimony. Id.
7
The Defense should have been permitted to ask the three witnesses all of the questions that were
8
9
objected to and for which the RMC refused to allow the defendnat to ask.
10 The Coughlin record on appeal might have received a significantly different impression of the three
11 witnesses and and his credibility if Defense Counsel had been permitted to cross-examine on the
12
issue of whether the witness lied in his sworn statement to police and whether the RSIC
13
Officer's lied, etc.
14
NRS §50.085(3) permits impeaching a witness on cross-examination about questions
15
about specific acts as long as the impeachment pertains to truthfulness or untruthfulness and no
16
17 extrinsic evidence is used.
18 CHALLENGES FOR CAUSE

19
20
PVIII. Did the Trial Court Commit Judicial Misconduct Throughout the
21
Trial Which Prejudiced Coughlin ' s Right to Due Process?
22
A trial court should act as a referee of the contest between the parties. It should be fair
23
and impartial as between the parties and their attorneys and allow them considerable freedom in
24
the presentation of their respective cases in their own way. A trial court has a certain amount of
25
discretion to control the proceedings before it. The court is constrained however by a requirement
26
27 that all criminal defendants are entitled to a fair trial. If the actions of the trial court prejudice a
28 defendant's right to a fair trial then obviously an abuse of discretion is present. Belden v.
- 27
691
1 Wyoming, 01-57, Wyo. 2003.
2 Trial Courts should be mindful that innocuous conduct in some circumstances may
3 constitute judicial misconduct. Judges should be mindful of the influence they wield. Parodi vs.
4
B. Washoe Medical Center, 111 Nevada 365, 367. This court said it best in Parodi at 589.
5
The average juror is a laymen . The average laymen looks with the
6
most profound respect to the presiding judge and the jury is as a rule
7
alert to any remark that will indicate favor or disfavor on the part of
8
the trial judge.
9
Human opinion is often times formed upon circumstances meager and insignificant in
10
11 there outward appearance. And the words and utterances of a trial Judge sitting with a jury in
12 attendance are liable, however unintentional, to mold the opinion of members of the jury to the
13 extent that one or the other side of the controversy may be prejudiced or injured thereby. The
14 influence of the trial judge on the jury is necessarily and properly a great weight and his lightest
15 word or intimation is received with deference and may prove controlling. Starr V. United States,
16
153 U.S. 614 at 626. (1894).
17
This Court recognized in Parodi Id. at 591 that trial counsel is faced with a "hopson's
18
choice" of either objecting to the misconduct which of course has the attendant risks of
19
antagonizing the trial judge further and exasperating the jury or by not objecting jeopardizing their
20
right for appellate review. This Court went on to rule that by failing to object, at the time of the
21
22
judicial misconduct, that appellate review would not be precluded. Errant conduct is reviewable
23 under the plain error doctrine. Oade v. State, 114 Nev. 619, 960 P.2d 336 at 338.
24 Throughout Coughlin's trial the Trial Court repeatedly, however inadvertently and
25 unintentionally, expressed impatience and was discourteous to trial counsel. These comments had
26 an adverse impact on Coughlin's trial counsel which in turn may have affected the acceptance or efficacy of
27
Coughlin's defense.
28
The errors cited herein were clearly erroneous, cumulative and had a prejudicial affect on
- 28
692
1 Coughlin's case.
2 Examples of judicial misconduct in trying to usurp trial counsel's role are numerous and
3
are seen as early as opening statement.The Trial Court's remarks and actions throughout
4
the trial were clearly prejudicial. What has been outlined for this court is not exhaustive of every
5
comment made by the Trial Court nor was it meant to be.
6
The highlights presented of judicial misconduct show cumulative error that was so
7
8
egregious and prejudicial that the defense could not get a fair trial, therefore Coughlin's case
9 should be reversed.
10
11
12
Further is important to note that the Reno Police Department and opposing counsel novation case
13
Richard G Hill joined forces again to get the undersigned arrested a custodial arrest mind you for
14
jaywalking on January 12, 2012 incident to the undersigned peacefully filming in collecting evidence of
15
from a public spot Hill and his perjury providing contractor Phil, that will ultimately be used in the
16
17 wrongful eviction lawsuit that is sure to ensue and to which is now likely to be added a wrong all arrest
18 last against the Reno Police Department, actually , these matters may best be set forth by copying a
19 recent letter from the undersigned herein:
20 theubject: RE: WCSO Deputy Machem's "personally served" Affidavit of 11/1/2011

21
22
Date: Tue, 7 Feb 2012 11:40:39 -0800
23
24
From: LStuchell@washoecounty.us
25
26
27
28
- 29
693
1 CC: mkandaras@da.washoecounty.us
4
Mr. Coughlin
5
7
Our records indicate that the eviction conducted on that day was personally served by Deputy Machen
8
by posting a copy of the Order to the residence. The residence was unoccupied at the time.
9
10
11
12 Liz Stuchell, Supervisor
13
14 WCSO Civil Section

15
16
17
18
From: Zach Coughlin [mailto:zachcoughlin@hotmail.com]
19
20
Sent: Monday, February 06, 2012 2:58 AM
21
22
23 To: Stuchell, Liz; Kandaras, Mary; nvrenopd@coplogic.com; Silva, Roxanna; kadlicj@reno.gov;
24 fourthestate@gmail.com; jamesandreboles@msn.com
25
26 Subject: WCSO Deputy Machem's "personally served" Affidavit of 11/1/2011

27
28
- 30
694
1 Dear IA Supervisor Stuchell and DDA Kandaras,
4
I realize you will likely not read all of this. The main thing is I am respectfully requesting that you
5
confirm with Deputy Machem that he did, in fact, "personally serve" the Summary Eviction Order on
6
me at 121 River Rock St., Reno 89501 on November 1, 2011 at 4:30 pm, in connection with performing
7
the lockout. It is my position that I was not "personally served" and I am trying to figure out whether
8
Deputy Machem is lying or whether the phrase "personally served" means something other than what I
9
believe it means, etc., etc. I appreciate your attention to this.
10
11
12
13 I am writing to inquire about and complain with regard to an Affidavit of Service filed by or for WCSO
14 Deputy Machem with respect to the service of a Order Granting Summary Eviction against me (in my
15 law office where non-payment of rent was not alleged, no less in violation of NRS 40.253 and where a
16
$2,275 rent escrow deposit was foisted upon me in violation of 40.253(6), especially where a stay of
17
eviction was not granted even while the RJC held on to most all my money...).
18
19
My issue with the WCSO is that Machem's Affidavit of Service indicates that he "personally served"
20
me, which kind of reminds me of all that robo-signing and MERS fraud I come across in my day job
21
(and do you wonder how many attorneys in the foreclosure defense game I am in constant contact with
22
23 who are watching and witness the potential RICO violations this writing mentions?), which includes
24 being a foreclosure defense attorney. So which is it? Did Machem "personally serve" me the Summary
25 Eviction Order? Richard G. Hill, Esq. likes to argue that I was "served" in compliance with all time
26 related rules because it was done in the "usual custom and practice of the WCSO. What, exactly, is the
27 "usual custom and practice of the WCSO? I hear a lot about this "within 24 hours" stuff. So, I go
28
hunting for some black letter law to support what those at the RJC and in the clueless community at
- 31
695
1 large (which often includes Nevada Legal Services and Washoe Legal Services, the people you guys had
2 such trouble actually serving in the lawsuits I filed, which may have actually helped improved legal
3 services in this community, if they were not dismissed due to insufficiency of service of process, even
4
where the IFP required the WCSO to served the defendants....). Anyway, back to the "within 24 hours"
5
phraseology: "
6
7
This whole business about “The court may thereupon issue an order directing the sheriff or constable of
8
the county to remove the tenant within 24 hours after receipt of the order...” is inapplicable to this
9
situation, where an Order Granting Summary Eviction was signed by October 27th, 2011. That
10
11 language is only found in situations inapplicable to the current one. NRS 40.253(3)(b)(2), and NRS
12 40.253(5)(a) are the only sections of NRS 40 where this “within 24 hours” language occurs, and those
13 situations only apply where, in:
14
15 40.253(3)(b)(2): “ 3. A notice served pursuant to subsection 1 or 2 must: ...(b) Advise the tenant: …. (2)
16
That if the court determines that the tenant is guilty of an unlawful detainer, the court may issue a
17
summary order for removal of the tenant or an order providing for the nonadmittance of the tenant,
18
directing the sheriff or constable of the county to remove the tenant within 24 hours after receipt of the
19
order”
20
21
and,
22
23
24 40.253(5)(a): “5. Upon noncompliance with the notice: (a) The landlord or the landlord’s agent may
25 apply by affidavit of complaint for eviction to the justice court of the township in which the dwelling,
26 apartment, mobile home or commercial premises are located or to the district court of the county in
27 which the dwelling, apartment, mobile home or commercial premises are located, whichever has
28
jurisdiction over the matter. The court may thereupon issue an order directing the sheriff or constable
- 32
696
1 of the county to remove the tenant within 24 hours after receipt of the order.” The way these summary
2 eviction proceedings are being carried out in Reno Justice Court presently shocks the conscience and
3 violates Nevada law. There is not basis for effectuating a lockout the way WCSO's Deputy Machem did
4
in this case. The above two sections containing the “within 24 hours of receipt” language are
5
inapplicable, as those situations do not invoke the present circumstances, where the Tenant did file an
6
Affidavit and did contest this matter to a degree not often seen. To require Nevada's tenants to get up
7
and get out “within 24 hours” of “receipt of the order” (what does that even mean? The use of terms like
8
“rendition”, “rendered”, “notice of entry”, “pronounced”, is absent here, and this “receipt of the order”
9
language is something rarely found elsewhere in Nevada law-see attached DMV statutory citations, and
10
11 in employment law litigations where one must file a Complaint within 90 days of “receipt” of a Right To
12 Sue Letter, a situation which follows NRCP 5(b), and NRCP 6(e) in imputing receipt of such a letter,
13 when actual receipt is not shown, by applying a “constructive notice” standard that relies upon the days
14 for mailing extension of time for items served in the mailing, etc.). In Abraham v. Woods Hole
15 Oceanographic Institute, 553 F.3d 114 (1st Cir. 2009), the record did not reflect when the plaintiff
16
received his right-to-sue letter. The letter was issued on November 24, 2006. The court calculated that
17
the 90-day period commenced on November 30, 2006, based on three days for mailing after excluding
18
Saturdays and Sundays. In order to bring a claim under either Title VII or the ADA, a plaintiff must
19
exhaust administrative remedies and sue within 90 days of receipt of a right to sue letter. See 42 U.S.C. §
20
2000e-5(f)(1). See Baldwin County Welcome Center v. Brown, 466 U.S. 147, 148 n.1, 104 S.Ct. 1723, 80
21
L.Ed.2d 196 (1984)(granting plaintiff an additional three days for mailing pursuant to Rule 6)....” ...
22
23
24
25
26
27 Dear Washoe County Sheriff's Office,

28
- 33
697
1
2 http://en.wikipedia.org/wiki/Service_of_process
4
"Substituted service
5
7
When an individual party to be served is unavailable for personal service, many jurisdictions allow for
8
substituted service. Substituted service allows the process server to leave service documents with
9
another responsible individual, called a person of suitable age and discretion, such as a cohabiting adult
10
11 or a teenager. Under the Federal Rules, substituted service may only be made at the abode or dwelling
12 of the defendant.[4] California, New York,[5] Illinois, and many other United States jurisdictions
13 require that in addition to substituted service, the documents be mailed to the recipient.[5] Substituted
14 service often requires a serving party show that ordinary service is impracticable, that due diligence has
15 been made to attempt to make personal service by delivery, and that substituted service will reach the
16
party and effect notice.[5]"
17
18
19
I am pretty sure "personally served" means you served the person in person, not that a person named
20
Machem went and posted a notice on a door, personally himself. See, I think you guys are thinking of
21
the "person" in the word personally as applying to the server, when in all instances I have ever seen it
22
23 used in the law, the "person" part of "personally" applies to the person being served. Help me out here,
24 Mary.
25
26
27 https://skydrive.live.com/redir.aspx?cid=43084638f32f5f28&resid=43084638F32F5F28!
28
1897&parid=root
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698
1
3 Also, does the WCSO have a position on what type of service is required of eviction orders prior to the
4
WCSO or whoever does it, being able to conduct a lockout?
5
http://www.leg.state.nv.us/courtrules/nrcp.html
6
NRCP RULE 60. RELIEF FROM JUDGMENT OR ORDER... (c) Default Judgments: Defendant Not
7
Personally Served. When a default judgment shall have been taken against any party who was not
8
personally served with summons and complaint, either in the State of Nevada or in any other
9
jurisdiction, and who has not entered a general appearance in the action, the court, after notice to the
10
11 adverse party, upon motion made within 6 months after the date of service of written notice of entry of
12 such judgment, may vacate such judgment and allow the party or the party’s legal representatives to
13 answer to the merits of the original action. When, however, a party has been personally served with
14 summons and complaint, either in the State of Nevada or in any other jurisdiction, the party must make
15 application to be relieved from a default, a judgment, an order, or other proceeding taken against the
16
party, or for permission to file an answer, in accordance with the provisions of subdivision (b) of this
17
rule.
18
Okay, so, really, you guys do this for a living, right...you serve people things....and sign Affidavits under
19
penalty of perjury and stuff, and you are telling me you believe "personally served" can included
20
situations where the person was not there? Okay.....You do know that, like, a Summons and Complaint
21
need to be "personally served" in the sense that, say Machem, would need to see that person and serve it
22
23 on them (I don't think they have to take the paper, they don't need to agree to accept service, but
24 Machem does need to see that person, in person, personally when he is swearing under penalty of
25 perjury that he "personally served" somebody. Usually "personally served" is only done in the case of
26 the first thing filed (unless there is an IFP) in a case, the Summons and Complaint. Thereafter, typically,
27 people just effect "substituted service" because its cheaper, less of a hassle, and "personal service" is
28
only required for serving the pleadings that start a case, the Summons and Complaint. Wow....Okay, so
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699
1 this is my whole point, these state sponsored lockouts under color of state law should not be being done
2 so fast, unless you guys "personally serve" the tenant, I feel the law is quite clear, you have to effect
3 "substituted service" which, under NRCP 6(a) and NRCP 6(e) and NRCP 5(b)(2) (and NRCP, not
4
JCRCP is applicable to eviction matters according to NRS 118A) the tenant cannot be deemed to have
5
received or constructively received the Order until the 3 days for mailing has passed.
6
Personal service by process server
7
Personal service is service of process directly to the (or a) party named on the summons, complaint or
8
petition. In most lawsuits in the United States, personal service is required to prove service. Most states
9
allow substituted service in almost all lawsuits unless you are serving a corporation, LLC, LLP, or other
10
11 business entity; in those cases, personal service must be achieved by serving (in hand) the documents to
12 the "Registered Agent" of a business entity. Some states (Florida) do not require that the documents
13 actually be handed to the individual. In California and most other states, the documents must be visible
14 to the person being served, i.e., not in a sealed envelope. If the individual refuses to accept service, flees,
15 closes the door, etc., and the individual has been positively identified as the person to be served,
16
documents may be "drop" served, and it is considered a valid service. Personal service of process has
17
been the hallmark for initialing litigation for nearly 100 years, primarily because it guarantees actual
18
notice to a defendant of a legal action against him or her. Personal service of process remains the most
19
reliable and efficacious way to both ensure compliance with constitutionally imposed due process
20
requirements of notice to a defendant and the opportunity to be heard. [2]^ The National Law Review:
21
The Continuing Relevance of Personal Service of Process
22
23
24
25
26 And even if something indicates Coughlin "knew" about the Order, much like in the case of Coughlin's
27 that was dismissed where the Washoe County Sheriff's didn't manage to get the "personal service" of
28
- 36
700
1 the Summons and Complaint done in time, or "sufficiently", opposing counsel in that matter could tell
2 you that "actual notice" is not a substitute for compliance with the service requirements.
6
Which is nice because folks like Richard G. Hill, Esq. have less of an opportunity to game the system
7
and swoop in with lockout then assert a bunch of hooey about NRS 118A.460 "reasonable storage,
8
moving, and inventorying expenses" subjecting the tenant's personal property to a lien. Richard G. Hill
9
insisted on throwing away the last thing my beloved grandmother gave me before she died 2 years ago in
10
11 the town dump. He and his contractor lied about so many things, including the fact that they used my
12 own damn plywood to board up the back porch of the property, then submitted a bill to the court in an
13 exhibit for $1,060 for "securing" the property (which doesn't really apply to NRS 118A.460's
14 "reasonable storage moving and inventorying expenses" like it is required to...further, the charged me
15 $900 a month for storage and sent me a bill for such prior to my arrest for trespassing at the 121 River
16
Rock location,...well if they charged me $900 to have a home law office there, then how is it someone
17
could be trespassing if they are being charged the full rental value for "use and occupancy of the
18
premises"? Further, even if it was a storage situations, there are sections of NRS 118A devoted to
19
evicting someone from a storage facility, not arresting them for trespass, and certainly not a custodial
20
arrest where the RPD Officer Carter and Sargent Lopez admit they never issued a warning to me or
21
asked me to leave prior to conducting a custodial arrest (which required $800 of bail, great!, and 3 days
22
23 in jail, no less). This is especially poor form where Officer Carter admitted to me that he takes bribes
24 from Richard Hill. Hey, if Officer Carter did not say that to me, go ahead and sue me, my man....I'm
25 waiting.....that's what I thought.
26
27
28
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701
1 He can say he was joking all he wants, but it ain't no joking ass situation to me when you are arresting
2 me and causing a google search result for my name to show an arrest....that's damaging the only thing I
3 have of monetary value (my professional reputation and name). It ain't no stand up hour when you are
4
putting me in cuffs, bro. And Officer Carter and Sargent Lopez refused to properly query Hill as to
5
whether he had sent me, prior to the trespassing arrest, a bill for the "full rental value" of the property,
6
a value that, at $900, was the same charge for the full "use and occupancy" of the premises. And
7
Richard G. HIll, Esq. was too busy chortling and filling out the Criminal Complaint to bother setting
8
them straight, despite my cues, I guess.
9
10
11
12
13 Now, add to that malfeasance the fact that Judge Sferrazza let Casey Baker, Esq. prepare the Order,
14 which means faithfully put to writing what the Judge announced, not attempt to steal $2,275 for your
15 Californian Beverly Hills High School graduate neurosurgeon client by slipping in something the judge
16
never said, ie, that the neurosurgeon gets to keep the $2,275 that Judge Sferrazza order the tenant to
17
pay into the Reno Justice Court as a "rent escrow" deposit required to preserve the right to litigate
18
habitability issues. Now, nevermind the fact that Judge Sferrazza actually did not have the jurisdiction
19
to require that (there is not JCRLV 44 in Reno, that's a Vegas rule, and if Reno wants a rule like that of
20
its own JCRCP 83 requires the RJC to publish it and get it approved by the Nevada Supreme Court
21
first....period.). Okay, so, to take it a step even further, Baker's order goes on to say "but the $2,275
22
23 won't be released to the neurosurgeon yet, "instead that sum shall serve as security for Coughlin's cost
24 on appeal, pursuant to Nevada JCRCP 73...". But wait, doesn't that mean Coughlin then gets a Stay of
25 Eviction during the pendency of the Appeal? Isnt' that was a security that large must be for? Because
26 the "Appeal Bond" is set by statute at only a mere $250....so holding on to 10 times that much of
27 Coughlin's cash must have been for the "Supersedeas Bond" mentioned a yielding one a Stay of
28
Eviction in NRS 40.380 and 40.385.
- 38
702
1
4
I know, I know, its confusing because actually those sections force the landlord, his attorneys and the
5
RJC to choose between viewing Coughlin as a residential tenant whose rent is less than $1,000, and
6
whom therefore is only required to post a measly supersedeas bond of $250 (and remember, a
7
supersedeas bond equals a stay of eviction equals not trespassing) or the the other choice is to view
8
Coughlin as a commercial tenant, which would allow charging a higher supersedeas bond (except for
9
that pesky part about his rent being under the $1,000 required by the statute to do so, his rent being
10
11 only $900), except, darn it, old Richard G. Hill, Esq. and Casey Baker, Esq. elected to pursue this
12 summary eviction proceeding under a No Cause Eviction Notice, which is not allowed against a
13 commercial tenant (ie, you can't evict a commercial tenant using the summary eviction procedures set
14 forth in NRS 40.253 unless you alllege non payment of rent and serve a 30 Day Non Payment of Rent
15 Notice To Quit, which they didn't because they "are just taking the path of least resistance here, Your
16
Honor (insert their smug chuckling and obnoxious/pretentious "can you believe this guy?" laughter and
17
head shaking...).
18
19
20
NRS 40.380 Provisions governing appeals. Either party may, within 10 days, appeal from the judgment
21
rendered. But an appeal by the defendant shall not stay the execution of the judgment, unless, within the
22
23 10 days, the defendant shall execute and file with the court or justice the defendant’s undertaking to the
24 plaintiff, with two or more sureties, in an amount to be fixed by the court or justice, but which shall not
25 be less than twice the amount of the judgment and costs, to the effect that, if the judgment appealed
26 from be affirmed or the appeal be dismissed, the appellant will pay the judgment and the cost of appeal,
27 the value of the use and occupation of the property, and damages justly accruing to the plaintiff during
28
- 39
703
1 the pendency of the appeal. Upon taking the appeal and filing the undertaking, all further proceedings
2 in the case shall be stayed.
7
So, why on earth is the City Attorney's Office still trying to try Coughlin on the trespass charge for
8
which he endured a custodial arrest and for which old Richard Hill is still filing Motion's to Show Cause
9
on in the appeal of the summary eviction matter in CV11-03628? Why, oh why? Does the Reno City
10
11 Attorney's Office have some sort of vested interest in keeping Coughlin down, busy, besotted,
12 encumbered, or otherwise? It, why, it couldn't be because Coughlin has a really good wrongful arrest
13 cause of action against the Reno Police Department, could it? http://www.youtube.com/watch?
14 v=5PR7q4OI5b0
15
16
17
And, well, yeah the Washoe County Sheriff's Office didn't quite get those Summons and Complaints
18
served in that one case Coughlin was suing his former employer in, the one where Coughlin was granted
19
an Order to Proceed In Forma Pauperis, which required the Washoe County Sheriff's Office to serve
20
the Summons and Complaints....But what does that have to to with the 6 days Coughlin spent in jail on
21
the arrest shown in the youtube video above? Its not like the Washoe County jailed videotaped a scene
22
23 where they were forcing Coughlin to get naked and put on a green dress. What's that? It is? They did do
24 that? Really? No...What? They also forced him to simulate oral and anal sex with deputies, in the guise
25 of some ridiculous "procedure" necessary to insure Deputy safety? Oh, wow. And they retaliated
26 against him for failing to answer their religious preference interrogation questions by placing him in an
27 icy cold cell for hours at a time, refusing him medical care despite his plaintive cries for help, while
28
wearing a thin t-shirt? Wow. They didn't jam a taser needle in his spine for extended periods of time,
- 40
704
1 though, did they? Your kidding! Whats next, your going tell me Sargent Sigfree of the Reno PD ordered
2 a custodial arrest on Coughlin for "jaywalking" while Coughlin was peacefully filming, from a public
3 spot, Richard G. Hill's fraudulent contractor Phil Howard destroying and taking to the town dump
4
items of enormous sentimental value to Coughlin that he was prevented from retrieving from the
5
property during the scant time he was allowed to (after he paid $480 worth of a lien for what he knew
6
not, because, despite, ol' Contractor Phil's fraudulent $1,060 bill for "securing" the back porch (with
7
screws facing the outside, inexplicably, and a window unit a/c left in the window facing the sidewalk
8
near the Lakemill Lodge, secured by nothing but duct tape
9
10
11
12 It is kind of a combo neon sign that says "Burglarize this Place, Everybody!"), Coughlin's former home
13 law office was burglarized on December 12, 2011 while Richard G. Hill was holding its contents
14 (including, tackily, Coughlin's client's files, like the ones for the foreclosure defense actions, etc.),
15 asserting his "lien". A lien for "storage" where the charge for storage, $900, was the same as the charge
16
for "full use and occupany" was. However, that $900 a month for "storage" also included another
17
$1,060 charge for "securing" (and that bill actually listed "fixing a leak in the basement...neither of
18
which seem to have much to do with the "reasonable storage, moving, and inventorying" expenses such
19
a lien is provided for under NRS 118A.460....). Jeez, your probably going to tell me Sargent Sigfree
20
ordered another custodial arrest on Coughlin just two days after the jaywalking arrest, for the same
21
fact pattern that Master Edmondson granted Coughlin's applications for Protections Orders against
22
23 based upon the battery and assaults that his former housemates committed. Because, Sargent Sigfree
24 thinks its "misuse of 911" for Coughlin to call when he returns home at night and his dog has
25 mysteriously disappeared, and his housemates make menacing commentary about it. Surely, Coughlin,
26 a former domestic violence attorney would have nothing helpful to add to Sargnet Sigfree's expert
27 opinion that "animal abuse is not domestic violence" (tell that to NRS 33.010, Sarge) and that its,
28
rather, "a matter for animal control" and that Sargent Sigfree was "trying to help" Coughlin by
- 41
705
1 arresting him, again, and necessitating the $1,500 bail associated with the gross misdemeanor charge,
2 "Misuse of 911" because, as Sargent Sigfree told Coughlin "you keep putting yourself in situations
3 where you are victimized" so it was necessary to arrest Coughlin in that regard.
4
6
But hey, at least NV Energy hasn't refused to let Coughlin get any electrical service for the past week
7
since those with the Protection Orders against them cancelled the service and NV Energy shut it off,
8
without providing any notice to Coughlin, right. Nevermind. But...but surely when NV Energy shut of
9
the power to Coughlin's home law office on October 4th, 2011, just hours prior to the bad faith
10
11 "inspection" with videographer of Coughlin' s home law office that Casey Baker, Esq. thought so very
12 necessary one day before Coughlin's Tenant Answer was due...surely NV Energy did not leave the back
13 gate to Coughlin's home law office open and speed off, Coughlin's beloved mountain bike suddenly
14 missing (the one the parents of his girlfriend of 5 years gave him)? Well, NV Energy is probably not
15 retaliating against Coughlin for complaining about that by refusing him electric service for the past
16
seven days, you would have to assume....
17
18
19
NRS 40.385 Stay of execution upon appeal; duty of tenant who retains possession of premises to pay rent
20
during stay. Upon an appeal from an order entered pursuant to NRS 40.253:
21
22
23
24 1. Except as otherwise provided in this subsection, a stay of execution may be obtained by filing with the
25 trial court a bond in the amount of $250 to cover the expected costs on appeal. A surety upon the bond
26 submits to the jurisdiction of the appellate court and irrevocably appoints the clerk of that court as the
27 surety’s agent upon whom papers affecting the surety’s liability upon the bond may be served. Liability
28
of a surety may be enforced, or the bond may be released, on motion in the appellate court without
- 42
706
1 independent action. A tenant of commercial property may obtain a stay of execution only upon the
2 issuance of a stay pursuant to Rule 8 of the Nevada Rules of Appellate Procedure and the posting of a
3 supersedeas bond in the amount of 100 percent of the unpaid rent claim of the landlord.
4
6
2. A tenant who retains possession of the premises that are the subject of the appeal during the
7
pendency of the appeal shall pay to the landlord rent in the amount provided in the underlying contract
8
between the tenant and the landlord as it becomes due. If the tenant fails to pay such rent, the landlord
9
may initiate new proceedings for a summary eviction by serving the tenant with a new notice pursuant
10
11 to NRS 40.253.
12 RS 40.390 Appellate court not to dismiss or quash proceedings for want of form. In all cases of appeal
13 under NRS 40.220 to 40.420, inclusive, the appellate court shall not dismiss or quash the proceedings for
14 want of form, provided the proceedings have been conducted substantially according to the provisions
15 of NRS 40.220 to 40.420, inclusive; and amendments to the complaint, answer or summons, in matters of
16
form only, may be allowed by the court at any time before final judgment upon such terms as may be
17
just; and all matters of excuse, justification or avoidance of the allegations in the complaint may be
18
given in evidence under the answer.
19
20
21
NRS 40.400 Rules of practice. The provisions of NRS, Nevada Rules of Civil Procedure and Nevada
22
23 Rules of Appellate Procedure relative to civil actions, appeals and new trials, so far as they are not
24 inconsistent with the provisions of NRS 40.220 to 40.420, inclusive, apply to the proceedings mentioned
25 in those sections.
26
27
28
- 43
707
1 But, back to the Sheriff's Office. And, I am not really buying the idea that you guys don't know NRCP 4
2 through 6 like the back of your hand, but....hell, maybe you don't. But, clearly the language in NRS 40
3 about how the Sheriff may "remove tenant from the property within 24 hours of receipt of the Order"
4
do not apply where the Tenant filed a Tenant's Answer and showed up to the Hearing and litigated the
5
matter. Especially where, as here the lease had not terminated, by its terms, but was rather renewed.
6
This is particularly true where NRS 118A prevents so terminating a holdover tenant's lease for a
7
retaliatory or discriminatory purpose.
8
10
11 I would hate to see people start to think the Washoe County Sheriff's Office is cutting corners on the
12 whole "personally served" thing (just so a landlord could get what they want quicker), just like I would
13 hate for people to think the Reno Municipal Court is letting the bottom line get in the way of providing
14 that whole Sixth Amendment Right To Counsel where jail time is even a possibility thing. And, hey, if
15 the RMC denies an indigent attorney the Sixth Amendment Right To Counsel, the finds him guilty of
16
NRS 22.030, Summary Contempt Commited in the Presence of the Court, and the puts him in cuffs
17
when the Trial ends, summarily sentencing him to 3 days in jail for violating NRS 22.030, well....that's
18
no big deal, right, I mean, the RMC technically kept its promise that the underyling charge, though
19
technically it could result in incarceration would not...because the incarceration was for a whole dang
20
different charge, ie, Summary Contempt in the presence of the Court....and so what if the whole
21
“zealous advocate” thing and the denying the Sixth Amendment Right to Counsel thing and the
22
23 Summary Contempt thing don't go so well together....Or if 6 court employees had to stay til 9pm getting
24 paid overtime at the RMC to get 'r done...
25
26
27
28
- 44
708
1 NRCP 4: "(d) Summons: Personal Service. The summons and complaint shall be served together. The
2 plaintiff shall furnish the person making service with such copies as are necessary. Service shall be made
3 by delivering a copy of the summons attached to a copy of the complaint as follows:...(6) Service Upon
4
Individuals. In all other cases to the defendant personally, or by leaving copies thereof at the
5
defendant’s dwelling house or usual place of abode with some person of suitable age and discretion then
6
residing therein, or by delivering a copy of the summons and complaint to an agent authorized by
7
appointment or by law to receive service of process. [As amended; effective January 1, 2005.] (e) Same:
8
Other Service. (1) Service by Publication. (i) General. In addition to methods of personal service, when
9
the person on whom service is to be made resides out of the state, or has departed from the state, or
10
11 cannot, after due diligence, be found within the state, or by concealment seeks to avoid the service of
12 summons, and the fact shall appear, by affidavit, to the satisfaction of the court or judge thereof, and it
13 shall appear, either by affidavit or by a verified complaint on file, that a cause of action exists against
14 the defendant in respect to whom the service is to be made, and that the defendant is a necessary or
15 proper party to the action, such court or judge may grant an order that the service be made by the
16
publication of summons. Provided, when said affidavit is based on the fact that the party on whom
17
service is to be made resides out of the state, and the present address of the party is unknown, it shall be
18
a sufficient showing of such fact if the affiant shall state generally in such affidavit that at a previous
19
time such person resided out of this state in a certain place (naming the place and stating the latest date
20
known to affiant when such party so resided there); that such place is the last place in which such party
21
resided to the knowledge of affiant; that such party no longer resides at such place; that affiant does not
22
23 know the present place of residence of such party or where such party can be found; and that affiant
24 does not know and has never been informed and has no reason to believe that such party now resides in
25 this state; and, in such case, it shall be presumed that such party still resides and remains out of the
26 state, and such affidavit shall be deemed to be a sufficient showing of due diligence to find the
27 defendant. This rule shall apply to all manner of civil actions, including those for divorce"
28
- 45
709
1
2 I guess it don't matter much to me which one of you pays me my damages for the wrongful eviction,
3 illegal lockout, whether its the landlord, his attorney, or the Sheriff's Office. Your money is always good
4
with me.
5
8
Zach Coughlin, Esq.
9
10
11
12 Subject: RE: WCSO Deputy Machem's "personally served" Affidavit of 11/1/2011
13
14 Date: Tue, 7 Feb 2012 11:40:39 -0800

15
16
From: LStuchell@washoecounty.us
17
18
19
20
CC: mkandaras@da.washoecounty.us
21
22
23
24 Mr. Coughlin,
25
26
27 Our records indicate that the eviction conducted on that day was personally served by Deputy Machen
28
by posting a copy of the Order to the residence. The residence was unoccupied at the time.
- 46
710
1
3 Liz Stuchell, Supervisor

4
5
WCSO Civil Section
6
9
From: Zach Coughlin [mailto:zachcoughlin@hotmail.com]
10
11
12 Sent: Monday, February 06, 2012 2:58 AM
13
14 To: Stuchell, Liz; Kandaras, Mary; nvrenopd@coplogic.com; Silva, Roxanna; kadlicj@reno.gov;

15 fourthestate@gmail.com; jamesandreboles@msn.com
16
17
Subject: WCSO Deputy Machem's "personally served" Affidavit of 11/1/2011
18
19
20
Dear IA Supervisor Stuchell and DDA Kandaras,
21
22
23
24 I realize you will likely not read all of this. The main thing is I am respectfully requesting that you
25 confirm with Deputy Machem that he did, in fact, "personally serve" the Summary Eviction Order on
26 me at 121 River Rock St., Reno 89501 on November 1, 2011 at 4:30 pm, in connection with performing
27 the lockout. It is my position that I was not "personally served" and I am trying to figure out whether
28
- 47
711
1 Deputy Machem is lying or whether the phrase "personally served" means something other than what I
2 believe it means, etc., etc. I appreciate your attention to this.
5
I am writing to inquire about and complain with regard to an Affidavit of Service filed by or for WCSO
6
Deputy Machem with respect to the service of a Order Granting Summary Eviction against me (in my
7
law office where non-payment of rent was not alleged, no less in violation of NRS 40.253 and where a
8
$2,275 rent escrow deposit was foisted upon me in violation of 40.253(6), especially where a stay of
9
eviction was not granted even while the RJC held on to most all my money...).
10
11
12 My issue with the WCSO is that Machem's Affidavit of Service indicates that he "personally served"
13 me, which kind of reminds me of all that robo-signing and MERS fraud I come across in my day job
14 (and do you wonder how many attorneys in the foreclosure defense game I am in constant contact with
15 who are watching and witness the potential RICO violations this writing mentions?), which includes
16
being a foreclosure defense attorney. So which is it? Did Machem "personally serve" me the Summary
17
Eviction Order? Richard G. Hill, Esq. likes to argue that I was "served" in compliance with all time
18
related rules because it was done in the "usual custom and practice of the WCSO. What, exactly, is the
19
"usual custom and practice of the WCSO? I hear a lot about this "within 24 hours" stuff. So, I go
20
hunting for some black letter law to support what those at the RJC and in the clueless community at
21
large (which often includes Nevada Legal Services and Washoe Legal Services, the people you guys had
22
23 such trouble actually serving in the lawsuits I filed, which may have actually helped improved legal
24 services in this community, if they were not dismissed due to insufficiency of service of process, even
25 where the IFP required the WCSO to served the defendants....). Anyway, back to the "within 24 hours"
26 phraseology: "
27
28
- 48
712
1 This whole business about “The court may thereupon issue an order directing the sheriff or constable of
2 the county to remove the tenant within 24 hours after receipt of the order...” is inapplicable to this
3 situation, where an Order Granting Summary Eviction was signed by October 27th, 2011. That
4
language is only found in situations inapplicable to the current one. NRS 40.253(3)(b)(2), and NRS
5
40.253(5)(a) are the only sections of NRS 40 where this “within 24 hours” language occurs, and those
6
situations only apply where, in:
7
8
40.253(3)(b)(2): “ 3. A notice served pursuant to subsection 1 or 2 must: ...(b) Advise the tenant: …. (2)
9
That if the court determines that the tenant is guilty of an unlawful detainer, the court may issue a
10
11 summary order for removal of the tenant or an order providing for the nonadmittance of the tenant,
12 directing the sheriff or constable of the county to remove the tenant within 24 hours after receipt of the
13 order”
14
15 and,
16
17
40.253(5)(a): “5. Upon noncompliance with the notice: (a) The landlord or the landlord’s agent may
18
apply by affidavit of complaint for eviction to the justice court of the township in which the dwelling,
19
apartment, mobile home or commercial premises are located or to the district court of the county in
20
which the dwelling, apartment, mobile home or commercial premises are located, whichever has
21
jurisdiction over the matter. The court may thereupon issue an order directing the sheriff or constable
22
23 of the county to remove the tenant within 24 hours after receipt of the order.” The way these summary
24 eviction proceedings are being carried out in Reno Justice Court presently shocks the conscience and
25 violates Nevada law. There is not basis for effectuating a lockout the way WCSO's Deputy Machem did
26 in this case. The above two sections containing the “within 24 hours of receipt” language are
27 inapplicable, as those situations do not invoke the present circumstances, where the Tenant did file an
28
Affidavit and did contest this matter to a degree not often seen. To require Nevada's tenants to get up
- 49
713
1 and get out “within 24 hours” of “receipt of the order” (what does that even mean? The use of terms like
2 “rendition”, “rendered”, “notice of entry”, “pronounced”, is absent here, and this “receipt of the order”
3 language is something rarely found elsewhere in Nevada law-see attached DMV statutory citations, and
4
in employment law litigations where one must file a Complaint within 90 days of “receipt” of a Right To
5
Sue Letter, a situation which follows NRCP 5(b), and NRCP 6(e) in imputing receipt of such a letter,
6
when actual receipt is not shown, by applying a “constructive notice” standard that relies upon the days
7
for mailing extension of time for items served in the mailing, etc.). In Abraham v. Woods Hole
8
Oceanographic Institute, 553 F.3d 114 (1st Cir. 2009), the record did not reflect when the plaintiff
9
received his right-to-sue letter. The letter was issued on November 24, 2006. The court calculated that
10
11 the 90-day period commenced on November 30, 2006, based on three days for mailing after excluding
12 Saturdays and Sundays. In order to bring a claim under either Title VII or the ADA, a plaintiff must
13 exhaust administrative remedies and sue within 90 days of receipt of a right to sue letter. See 42 U.S.C. §
14 2000e-5(f)(1). See Baldwin County Welcome Center v. Brown, 466 U.S. 147, 148 n.1, 104 S.Ct. 1723, 80
15 L.Ed.2d 196 (1984)(granting plaintiff an additional three days for mailing pursuant to Rule 6).
16
17
18
Further, despite what the inaccurate handouts of Nevada Legal Services may say about this “24 hours”
19
and the applicability of the JCRCP to cases like these, NRS 40.400 Rules of practice, holds that :”The
20
provisions of NRS, Nevada Rules of Civil Procedure and Nevada Rules of Appellate Procedure relative
21
to civil actions, appeals and new trials, so far as they are not inconsistent with the provisions of NRS
22
23 40.220 to 40.420, inclusive, apply to the proceedings mentioned in those sections. As such NRCP 6(a),(e)
24 applies to the Order of Summary Eviction that WCSO Deputy Machem alleged, under penalty of
25 perjury, that he "personally served" upon me on November 1, 2011. That is a lie by Mr. Machem,
26 unless "personally served" is defined in a rather impersonal way and or Machem and I have totally
27 different understanding of the definition of "personally served", which may be the case. Or, perhaps the
28
Sheriff's Office is busy and doesn't want to wait around to "personally serve" every tenant it wishes to
- 50
714
1 evict. Fine, then just use the "mail it and allow three days" rule in NRCP 6(e)...the landlord's might not
2 like it, but they can use that frustration as an incentive not to jump to litigating every disagreement
3 about habitability that a tenant brings to them. You may not realize how ridiculous some landlord's get.
4
In my case, I offered to fix basic things that clearly implicated the habitability rules in NRS 118A.290
5
and the Californian neurosurgeon, Beverly Hill High School graduate landlord balked and complained
6
then hired and attorney four days into a dispute.....at which point the rules against contacting
7
represented parties prevented much in the way of real settlement discussion, particularly where
8
opposing counsel has continuously demonstrated a complete indifference to pursuing settlement (why
9
would he at the rates he bills hours at?). I just don't think the Sheriff's Office needs to sully its image or
10
11 damage the citizen tenants of Washoe County in the name of pleasing people like Dr. Matt Merliss or
12 Richard G. Hill, Esq.
13
14 I AM REQUESTING, IN WRITING, THAT BOTH OF YOUR OFFICES INVESTIGATE THIS AND

15 PROVIDE A SWORN AFFIDAVIT FROM MR. MACHEM THAT ADMITS THAT I WAS NOT
16
PERSONALLY PRESENT WHEN HE SERVED THE ORDER FOR SUMMARY EVICTION IN RJC
17
REV2011-001708 ON 11/1/12 AT 4:30 PM (ACCORDING TO HIS AFFIDAVIT OF SERVICE). YOU
18
NEVER KNOW, I MIGHT HAVE IRREFUTABLE PROOF THAT I WAS SOMEWHERE ELSE AT
19
THAT TIME, SO, BE CAREFUL. There simply is not anything specific in Nevada law addressing how
20
such Summary Eviction Orders are to be served and carried out. The sections dealing with
21
22
23
24 NRS 40.253 Unlawful detainer: Supplemental remedy of summary eviction and exclusion of tenant for
25 default in payment of rent....
26
27 6. Upon the filing by the tenant of the affidavit permitted in subsection 3, regardless of the information
28
contained in the affidavit, and the filing by the landlord of the affidavit permitted by subsection 5, the
- 51
715
1 justice court or the district court shall hold a hearing, after service of notice of the hearing upon the
2 parties, to determine the truthfulness and sufficiency of any affidavit or notice provided for in this
3 section. If the court determines that there is no legal defense as to the alleged unlawful detainer and the
4
tenant is guilty of an unlawful detainer, the court may issue a summary order for removal of the tenant
5
or an order providing for the nonadmittance of the tenant....
6
7
7. The tenant may, upon payment of the appropriate fees relating to the filing and service of a motion,
8
file a motion with the court, on a form provided by the clerk of the court, to dispute the amount of the
9
costs, if any, claimed by the landlord pursuant to NRS 118A.460 or 118C.230 for the inventory, moving
10
11 and storage of personal property left on the premises. The motion must be filed within 20 days after the
12 summary order for removal of the tenant or the abandonment of the premises by the tenant, or within
13 20 days after:
14
15 (a) The tenant has vacated or been removed from the premises; and
16
17
(b) A copy of those charges has been requested by or provided to the tenant,
18
19
Ê whichever is later.
20
21
8. Upon the filing of a motion pursuant to subsection 7, the court shall schedule a hearing on the motion.
22
23 The hearing must be held within 10 days after the filing of the motion. The court shall affix the date of
24 the hearing to the motion and order a copy served upon the landlord by the sheriff, constable or other
25 process server. At the hearing, the court may:
26
27 (a) Determine the costs, if any, claimed by the landlord pursuant to NRS 118A.460 or 118C.230 and any
28
accumulating daily costs; and
- 52
716
1
2 (b) Order the release of the tenant’s property upon the payment of the charges determined to be due or
3 if no charges are determined to be due...."

4
5
I also want to know why NRS 40. 253(8) was not followed with respect to my November 17th, 2011 filing
6
of a Motion to Contest Personal Property Lien. Why didn't the WCSO serve notice, as required by NRS
7
40.253(8) upon the landlord's attorney Richard Hill? Why didn't I get a hearing within the 10 days
8
called called for by that section (to get back my client's files no less), but rather, I had to wait a full 33
9
days to get a hearing, and service of notice of the hearing was not effectuated, as required by NRS
10
11 40.235(8), by the WCSO. Why?
12
13 Please provide an indication, in writing, of the names and case numbers for the last 20 incidences when
14 the WCSO has served notice of a hearing set pursuant to NRS 40.253(8). What's that? The WCSO has
15 NEVER served such notice? Yet the WCSO is there with bells on (or Machem is) to lie in Affidavits of
16
Service to lock out the citizen tenants of Washoe County impermissilby early vis a vis NRCP 5(b)(2) and
17
NRCP 6(e)? Why is that? Is it a conspiracy? Does money talk? When I was arrested for trespassing on
18
November 12th, 2011 by RPD Officer Chris Carter and Sargent Lopez, Carter admitted to me that
19
"Richard Hill pays him a lot of money and therefore he arrests whom Richard Hill says to and does
20
what Richard Hill says to do...." Both Carter and Sargent Lopez refused to investigate, despite
21
prompting, whether Richard Hill has sent the tenant/arrestee a bill or demand letter in bill for the full
22
23 rental value of the property, $900 per month, under some interpretation of the "reasonable storage,
24 moving, and inventorying expenses" collectable by a landlord under a personal property line set forth in
25 NRS 118A.460 (one could also interpret such a bill as Hill's withdrawing or eradicating the Order of
26 Summary Eviction itself, which was not "personally served" by the Washoe County Sheriff (despite
27 what their Affidavit of Service says...I wasn't even there at the time they changed the locks...and so the
28
Summary Eviction Order was not properly served under NRCP 6, and despite the Reno Justice Court
- 53
717
1 impermissibly converting $2300 of my money under a "rent escrow" Order its required I comply with
2 in order to litigate habitability issues in a summary eviction proceeding under NRS 40.253, despite NRS
3 40.253(6)'s express dicate against such an Order (unless, pursuant to JCRCP 83, a justice court gets
4
such a rule, like Justice Court Rule of Las Vegas (JCRLV) Rule 44, published and approved by the
5
Nevada Supreme Court, which the RJC has not, rather, the RJC applies all these insidious secret
6
"house rules" (like forcing tenants to deliver themselves to the filing office to submit to personal service
7
notice of a summary eviction hearing within, like, 12 hours of the Tenant filing a Tenant's Answer or
8
Affidavit in response to an eviction Notice, rather than the service requirements of such notice following
9
NRCP 6 (days for mailing, etc., etc., in other words, in the RJC everything is sped up imperissilby to
10
11 help landlord's out, and the NV. S. Ct ruling in Glazier and Lippis clearly contemplate personal liability
12 against the Court and or Judges themselves for so doing)....A Qui Tam action or something a la
13 Mausert's in Solano County, I believe, in California, would be very interesting...Still haven't heard
14 anything from the Reno PD about the various complaints I have filed with them in writing related to the
15 wrongful arrests, excessive force and other misconduct committed against me, though they did arrest
16
me the other day for calling 911incident to some domestic violence for which I was granted to Extended
17
Protection Orders against my former housemates....old Sargent Sigfree ordered that arrest, as he did
18
two days prior when he ordered a custodial arrest of me for "jaywalking".
19
Funny thing, I never heard anything back from the RPD about complaints like the following one:
20
“From:
21
NvRenoPd@coplogic.com
22
23 Sent:
24
25 Wed 9/07/11 10:51 PM
26 To: zachcoughlin@hotmail.com
27 ****DO NOT RESPOND TO THIS E-MAIL****
28
We're sorry the following problem was found during review
- 54
718
1 of your submitted report T11005956:
2 THIS IS NOT THE FORUM FOR THIS TYPE OF COMPLAINT HOWEVER THIS REPORT WAS
3 PRINTED AND PASSED ON TO THE OFFICER'S SUPERVISOR AND IT WILL BE ADDRESSED.

4
Thank you,
5
Officer WOZNIAK,
6
Reno Police Department”
7
What is interesting there is that at least I was provided the name of an officer, a "Wozniak" (though I
8
have been unable to confirm the existence of
9
10
11 such an RPD Officer...
12
13 or whether " THIS IS NOT THE FORUM FOR THIS TYPE OF COMPLAINT HOWEVER THIS
14 REPORT WAS PRINTED AND PASSED ON TO THE OFFICER'S SUPERVISOR AND IT WILL BE
15
16
ADDRESSED."
17
What is more strange is that I submitted several online police reports to the Reno PD (a couple of which
18
asserted complaints against various Reno PD officers, or asked why RDP Officer Carter, whom
19
admitted taking bribes from Richard G. Hill, Esq. at the time of my custodial arrest for trespassing (the
20
one where Richard Hill signed a Criminal Complaint for trespass, then Officer Carter and Sargent
21
Lopez refused to follow up on my imploring them to ask Hill whether he has recently sent me a bill for
22
23 the "full rental value" of the property, the same amount that had been charged for the "use and
24 enjoyment" of the premises, $900, in comparision to what NRS 118A.460 may deem "reasonable
25 storage" expenses for which a lien is available to a landlord, though NRS 118A.520 has outlawed rent
26 distraints upon tenant's personal property....Regardless, between January 8 - 12th, 2012, and was
27 arrested twice by the Reno PD shortly after submitting these written complaints to the Reno PD.
28
- 55
719
1 tually, upon being released from jail on November 15th, 2011, incident to the custodial trespass arrest, I
2 went to Richard HIll's office to get my wallet and driver's license. He refused to provide it to me until
3 late November 22nd, 2011. Hill called the Reno PD on the 15th (or maybe I did because he was
4
withholding my state issued ID, the one I would need to rent a room, drive my car, and my wallet, which
5
is kind of useful in such situations....). Anyways, Sargent Tarter of the Reno PD showed up, he went
6
inside Hill's office with Hill for quite some time and the result was Tarter telling me to leave. I did, but
7
while driving down St. Laurence towards S. Virginia (Hill's office is at 652 Forrest St. 89503 and would
8
have required turning down the wrong way of a one way street, Forrest, to go back to Hill's Office (so
9
clearly I was not headed to Hill's office) Sargent Tarter began tailing me, then he pulled me over, then
10
11 he gave me a ticket, in retaliation if you ask me for reporting RPD Officer Carter admitting that he
12 takes bribes from Hill to Sargent Tarter minutes earlier. Uh, well, anyways, another Sargent calls me
13 later that night, taking the "good cop" role. But upon informing him of what RPD Officer Carter told
14 me about Hill paying him money to arrest people during the 11/12/11 trespassing arrest, that Sargent
15 immediately informed me that, despite this being the first he heard of that, he was sure that was not
16
happening....I guess RPD Officer Carter is trying to explain away his comments about Richard Hill
17
paying him money to arrest people by dismissing them as sarcasm, a joke, said in jest, whatever....but I
18
don't see how that situation (a license attorney getting arrested for a crime, a conviction for which
19
would result in that attorney being required to report said conviction to the State Bar of Nevada under
20
SCR 111, etc., and possibly resulting in a suspension of that attorney's license to practice law, or
21
worse...) is all that jocular of a situation. Combine that with the too quick to dismiss my reports of
22
23 bribery by Richard Hill to officer Carter to the RPD Sargent who called me on 11/15/11 regarding the
24 retaliation by Sargent Tarter that I complained of, and I don't think it is all that unreasonable for
25 anyone to take RPD Officer Carter at his word regarding Richard G. Hill, Esq. paying him money to
26 arrest whom Hill says to arrest. Add to that Sargent Sigfree ordering my arrest for jaywalking (by a
27 trainee RPD Officer) on January 12th, 2011 (custodial arrest, bail of $160 emptied my bank account
28
out, or pretty close to it) while I was peacefully filming from a public spot Richard G. Hill, Esq's
- 56
720
1 contractor Phil Howard, whom had submitted bills in courts records and filings under the lien for
2 "reasonable storage moving and inventorying" found in NRS 118A.460, even where old Phil used my
3 own plywood at the property to board up the back porch (curiously leaving the screws holding up the
4
plywood exposed to exterior of the property where anyone could easily unscrew them, and also leaving
5
in a window unit ac secured only by ducttape in a window facing a sidewalk by the LakeMill
6
Lodge....which resulted in $8,000 at least of my personal property being burglarized from my former
7
home law office on Decmeber 12th, 2011 while Hill was asserting a lien on all my personal property
8
found therein (and my client's files, which arguably are not even my property, but rather, the client's
9
property). Hill went on to place what he believes to be my social security number in court records, on
10
11 purpose, despite his signing an Affirmation pursuant to NRS 239B.030 that that was not the case
12 (attaching a two page report to the RPD as an Exhibit). Then Hill and his contractor Phil Howard both
13 committed perjury when the signed Declarations attesting that I had climbed on the contractors truck
14 or ever touched Hill. Hill lies constantly, whether under penalty of perjury or now, so I don't have time
15 to rebut every little lie he makes (he makes me out to comes across as a Yosemite Sam caricature of a
16
human being in his filings when he describes me...).
17
18
19
Further, why am I arrested for trespassing and not those from Nevada Court Services where they went
20
behind closed gate the the backyard of my home law office and banged on window extremely loudly for
21
40 minutes at a time 3 times a day, one guy ringing the doorbell, one guy moving around all other sides
22
23 of the property banging on the windows, peering in closed blinds, and affecting a phony "color of law"
24 tone, resemblance, and verbal communications, misleadingly announcing that they were "Court
25 Services, come out now!", wearing their pretend Sheriff outfits, big equipment saddled belts (including
26 firearms, I believe, and radios), etc. ,etc.

27
28
http://www.youtube.com/watch?v=jQ132q2O7DY
- 57
721
1
3 Add to that that Nevada Court Services Jeff Chandler drives by in his Monster Truck baring his
4
personalized "NCS" license plate while I am in the RPD squad car, handcuffed, outside my former law
5
office at 121 River Rock, at the time of the 1/12/12 jaywalking arrest and the appearances are troubling.
6
Now, add to that that Lew Taitel, Esq. was my court appointed public defender in the Reno Municipal
7
Court in the trespass case, and that Judge Gardner had refused to provide me the names of prospective
8
appointed defense counsel (I wanted to run a conflicts check) at my arraignment (where Marshal
9
Mentzel barked at me in a threatening tone, using menacing language), whereupon Taitel was appointed
10
11 as my defense attorney and filed a notice of appearance, and received my confidential file, pc sheet,
12 arrest reports, ssn, etc....only its turns out that Taitel shares and office and a receptionist with Nevada
13 Court Services and they list him and his picture on their website as "associated with" their Process
14 Server corporation, despite the prohibition lawyers face against fee sharing with non-lawyers. Then,
15 Taitel somehow manages to get out of defending my case without filing a Motion to Withdraw as
16
Counsel, despite that being required by the Reno Municipal Court Rule 3(B):
17
18
RMCR Rule 3(B): Authorization to Represent (B): An attorney desiring to withdraw from a case shall
19
file a motion with the court and serve the City Attorney with the same. The court may rule on the
20
motion or set a hearing.
21
22
23
24 But, perhaps most troubling of all is the implication that the Reno City Attorney's Office, which defends
25 actions against the City of Reno Police Department and its Officers, has a vested interest in discrediting
26 me in advance of the wrongful arrest lawsuit that the Reno City Attorney's office knew was imminent at
27 the time of all of the above incidents, relating to the following August 20th, 2011 wrongful arrest by
28
RPD Officer's Duralde and Rosa. http://www.youtube.com/watch?v=5PR7q4OI5b0 So, that's what
- 58
722
1 attempting to coerce a suspect's consent to an impermissible search sounds like? Add to that that the
2 trespassing case is before Judge Gardner, whom most recently was employed with the Reno City
3 Attorney's Office.
4
6
And, you know what is funny? Officer Del Vecchio cuffed me and placed me in his squad car last
7
summer after he terrified me and another gentleman who had bicycles. He veered across the road and
8
screeched his squad car to a halt, jumped out, and did some other stuff, then demanded my name and
9
ID...and the lawyer in me didn't like that that much, and he didn't like me not wanting to give it to him.
10
11 This occurred right in front of my home law office in the summer of 2011. He cuffed me and told me I
12 was going to jail for something about a light on the front of my bicycle (the one NV Energy likely stole
13 when the shut off my power, unnoticed, on October 4, 2011) despite my bike actually having such a
14 light....but then Del Vecchio's partner did him a solid and talked some sense into him, and I humbled it
15 up for Del Vecchio and we both let it go, and I didn't go to jail....Until Del Vecchio was present
16
supervising some Officer's training at the scene of my custodial (9 hour) jaywalking arrest) on 1/12/12.
17
But Del Vecchio, I guess either didn't want to or wasn't able to talk some sense into Sargent
18
Sigfree.....and then Sargent Sigfree (the spelling is likely off) had me arrested and charged with a gross
19
misdemeanor, "Misuse of 911" just two days later, on January 14th, 2011 when I called 911 to report
20
that my roommates were laughing menacingly when I asked them why my dog was missing (I had also
21
been chased up to my room numerous times since moving in with these people, something I had to do
22
23 because so much of my money had been taken up with bail or lost earnings due to all these wrongful
24 arrests and abuse of processes mentioned above...also these housemates had chased me with a ten inch
25 butcher knife, two of my tires were slashed, I was locked out all night on New Years Even when these
26 changed the locks at around midnight, had my furniture thrown in the street, property stolen, coffee
27 thrown on me, destroying my smart phone in the process, etc., etc...And despite the housemate having
28
an outstanding arrest warrant, and animal abuse being listed amongst the elements of domestic violence,
- 59
723
1 Sargent Sigfree told me he was arresting me because I "keep putting yourself in these situations", like,
2 where I am a victim, and that he was "trying to help you", he said with a smirk and a laugh to his fellow
3 RPD Officers, whom then proceeded to use excessive force against me. I guess he was helping me by
4
saddling me with a gross misdemeanor with a $1,500 bail, especially where its been arranged for Court
5
Services, or pre-Trial Services to forever deny me an OR, despite my meeting the factors for such set
6
forth in statute (30 year resident, entire immediate family lives here, licensed to practice law in Nevada,
7
etc., etc)...I guess it should not be too much of a surprise to me that Reno City Attorney Pam Roberts
8
failed to address the perjury of all three of her witnesses or that her fellow Reno City Attorney
9
Christopher Hazlett-Stevens lied to me about whether or not the Reno City Attorney's Office even had
10
11 any documentation related to my arrest or whether it would in the month before my arraignment,
12 despite that fact that subsequent productions of discovery tend to indicate that the Reno City Attorney's
13 Office did have those materials at the time. I could be wrong about some of this...But that would require
14 and awful lot of coincidences.

15
16
17
Sincerely,
18
19
20
Zach Coughlin, Esq
21
22
23 CONCLUSION
24
25 Regardless, the "Judgment" or "Order" here was not appropriately served on the undersigned
26
27
and trips to the RMC to obtain a copy of the Contempt Order, the Guilty Judgment, and the audio
28
- 60
724
1 recording of the Trial and all were either not granted, not provided, or provided in such a delayed
2 manner as to create an unduly prejudicial situation adversely effecting the undersigneds rights
3
sufficient to impermissibly compromise fundamentals notions of fairness and due process.
4
Further, the Order is "rendered" when Judge Howard says it is "rendered", and Judge Howard
5
6
7 District Court ultimately, the 10 day deadline for filing a Notice of Appeal would not begin running
8 until after the 3 day Summary Contempt Order's three day jail sentence concluded. Damn, this
9
stuff is complicated. Sure it nice to see the government goign hard as a mother to protect lil ol'
10
Wal-Mart whom is rumored to be the subject of a documentary about how they have a intricate
11
12
15
pursuant to NRS 239B.030.
16
17
18
19
20
/s/ Zach Coughlin_________________
21
Zach Coughlin, Esq.
22 NV Bar No. 9473
1422 E. 9th St. #2
23 Reno, NV 89512
Tele: 775-338-8118
24
Fax: 949-667-7402
Attorney for Pro Se Appellant Denied Sixth Amendment Right To Counsel
26
27
28
- 61
725
1
PROOF OF SERVICE
2
4
On this date, I, Mr. Zach Coughlin served the foregoing document by faxing, emailing,
5 delivering and serving upon registered efilers and depositing a true and correct copy in the US Mail
6
addressed to:
7 PAM ROBERTS, ESQ

JOHN KADLIC, ESQ
P.O. Box 1900 Reno , NV 89505
9
Phone Number: 7753342050
10 Fax number: 7753342420
11
12 dated February 22, 2012
13
14
15
Zach Coughlin
16 Zach Coughlin
AGENT OF APPELLANT
17
18
19
20
21
22
23
24
25
26
27
28
- 62
726


Clerk Accepted: 02-16-2012:13:55:26
Document(s) Submitted: Mtn Proceed Forma Pauperis
COUGHLIN
727
FILED
Electronically
02-23-2012:01:17:52 PM
Clerk of the Court
728
729
730
731
732
733


Clerk Accepted: 02-22-2012:11:23:27
COUGHLIN
734
FILED
Electronically
02-24-2012:08:22:49 AM
1 +Document Code: Clerk of the Court
3
1422 E. 9th St. #2
Reno, NV 89512
4 Tele: 775-338-8118
Fax: 949-667-7402
6

9
ZACH COUGHLIN; )
10 )
Appellant, )
11 )
12
)
)
14 Respondents. )
)
15
16
17 SUPPLEMENT TO APPELLANT'S OPENING BRIEF; OR PLEAD IN THE

ALTERNATIVE, NOTICE OF INSUFFICIENCY OF THE RECORD ON APPEAL
18
19 COMES NOW, Appellant Zach Coughlin, by and through his attorney, Zachary Barker
20 Coughlin, Esq , and offers the above title document. The Record on Appeal or however the RMC is
21
titling it is insufficinet. The illegible "four pages per page" versio of the materials I filed with the
22
RMC do not comport with the "one pae per page" completely legible version RMC Filing Officer
23
Supervisor Donna Ballard gave me permission to submit to her via the email address,
24
25 RenoMuniRecords@Reno.gov, which was done to ease the burden on the RMC fax machine. I
26 swear this under penatly of perjury and ask that this Court require the RMC to provide the "one page
27
per page", legible version, and quit refusing to allow me access to police reports that are attached as
28
- 1 SUPPLEMENT TO APPELLANT'S OPENING BRIEF; OR PLEAD IN THE ALTERNATIVE, NOTICE OF

INSUFFICIENCY OF THE RECORD ON APPEAL
735
1 Exhibits to the criminal complaint (Thomas, filing clerk at the RMC, refused to do this and indicated
2 Judge Howard told him to call Judge Howard anytime I appeared rather than "deal with your
3
nonsense". Thomas also told me I would need a subpoena to see a copy of the docket in my case 11
4
CR 22176. He said this in English. Attached as Exhibit 1 is a copy of the filing that was submitted
5
6
to the RMC on 12/12/11, titled "Notice of Appeal, Motion to Vacate and or set Aside, JCRCP 59,
7 JCRCP 60, Motion for Reconsideration; MOtion for REcusal". What is not clear is how the RMC
8 can be said the "file" something at 9:00pm at night, while something I filed on 12/12/11 is put down
9
on the "Certified Docket" as being filed 12/13/11. See Exhibit 1, which also contains a 12/8/11
10
Request for Copy of the Audio Transcript that was filed with the RMC which does not appear to be
11
listed in the Certified Transcript. So, the Record on Appeal should include the 107 page Notice of
12
13 Appeal, Etc. filign of 12/12/11, as well as another Notice of Appeal, Etc. filign on 12/13/11
14 (however, that filign had and Exhibit 1 attached that was 794 pages, and it was not in a "four page
15
per page" form as accepted for filing by RMC Supervisor Donna Ballard, though the version of it
16
placed in the Record on Appeal is an illegible "four page per page" version, which does not surprise
17
me given the lengths the RMC seems willing to go to avoid any transparency arising in this matters.
18
19 The Exhibit attached hereto is not a complete representation of all that the RMC ought place in the
20 Record on Appeal, but its a start. Further, the fact that this Notice of Appeal was filed, or shoudl be
21
recognized as filed on 12/12/11, a Monday, should vitiate the Reno City Attorney's 10 calendar day
22
NRS 189.010, jurisdictional deadline to file a notice of appeal under the Root case argument, as the
23
10 days, udner that approach, would run on the next judicial day following that Saturday, which
24
25 woudl be the day this was submitted, Monday, 12/12/11. That is early under my argument, but
26 regardless, the appeal was timely filed, lets play ball.

27
28

736
3
4
7
/s/ Zach Coughlin_________________
9
NV Bar No. 9473
1422 E. 9th St. #2
10 Reno, NV 89512
Tele: 775-338-8118
11 Fax: 949-667-7402
12
Attorney for Pro Se Appellant Denied Sixth Amendment Right To Counsel
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

737
1
PROOF OF SERVICE
2
4
On this date, I, Mr. Zach Coughlin served the foregoing document by faxing, emailing,
5 delivering and serving upon registered efilers and depositing a true and correct copy in the US Mail
6
addressed to:
7 PAM ROBERTS, ESQ

JOHN KADLIC, ESQ
P.O. Box 1900 Reno , NV 89505
10 Attorney for Respondent, City of Reno
11 dated February 24, 2012

12
13
14
Zach Coughlin
15
Zach Coughlin
AGENT OF APPELLANt
16
17
18
19
20
21
22
23
24
25
26
27
28

738
1 INDEX TO EXHIBITS
2
1. EXHIBIT 1: 12/12/11 Notice of Appeal filing in the RMC; One Hundred and Seven (107) pages.
3
2. Exhibit 2: collection of writings proving filings were submitted to the RMC via renomunirecords@reno.gov,
4 and that the pdf attachments to those emails should be included in the REcord on Appeal; also included is the
12/8/11 filing of a REquest for Audio Copy of Proceedings.
5
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

739
FILED
Electronically
02-24-2012:08:22:49 AM
EXHIBIT 1
Clerk of the Court
EXHIBIT 1
740

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748

Sent: Thu 12/08/11 5:14 PM
To: hazlett-stevensc@reno.gov
749
1 of 7 12/12/2011 4:21 PM
Zach Coughlin, Esq.

Reno, NV 89501
tel: 775 338 8118
fax: 949 667 7402
privilege.
Date: Thu, 8 Dec 2011 16:05:11 -0800

Mr. Coughlin. I have never spoken to you and have never denied discovery to a defendant in any matter. Again
you seek to engage me in a convesation about the pending trespassing. I cannot speak with you. You are
represented by counsel.
Thank you,
Chris
City of Reno
Tel: 326-6628
Fax: 334-4226
750
2 of 7 12/12/2011 4:21 PM
To: <hazlett-stevensc@reno.gov>, <robertsp@reno.gov>
Date: Thu, 8 Dec 2011 15:44:36 -0800
751
3 of 7 12/12/2011 4:21 PM
Zach Coughlin, Esq.

Reno, NV 89501
tel: 775 338 8118
fax: 949 667 7402
Date: Wed, 7 Dec 2011 07:34:25 -0800

aware that I cannot communicate with a you as a represented party. Do not contact me without your
counsel.
Thank you,
Chris
City of Reno
Tel: 326-6628
Fax: 334-4226
confidential and are protected by the attorney-client privilege and/or work product doctrine. If you are not
752
4 of 7 12/12/2011 4:21 PM
the intended recipient or a person responsible for delivering it to the intended recipient you are hereby
notified that any review, disclosure, copying, dissemination, distribution or use of any of the information
contained in, or attached to this e-mail transmission is STRICTLY PROHIBITED. If you have received this
transmission in error, please immediately notify us by forwarding this e-mail to the sender or by telephone at
(775) 334-2050 and then delete the message and its attachments.
Date: Wed, 7 Dec 2011 01:48:03 -0800

correspondences, or media in any way connected to the trespass case against me for
which Lew Taitel was apparently my court appointed attorney, but whom no longer is.
Further, I wish to be copied on everything past and present in any way related to this
matter until and after I procure another attorney. I did not agree to the continuance you
sought, nor was I informed you were seeking it. I find it particularly troubling that a
continuance was granted in the trespass case to the same man who is applying an
unlawful rent distraint on both my client files, personal property, AND THE
EXCLUPATING EVIDENCE I NEED TO DEFEND MYSELF IN THE PETIT
LARCENY CASE FOR WHICH I DETAIL THE COMPLAINTS I HAVE AGAINST
YOU AND YOUR OFFICE'S HANDLING BELOW. NO CONTINUANCE WAS
GRANTED OR AGREED TO AT TRIAL BY THE RMC OR MS. ROBERTS,
PERHAPS SHE WAS TOO BUSY ALLEGEDLY SUBORNING THE PERJURY OF
RSIC OFFICER KAMERON CRAWFORD.
be "page 1" followed by pages without that heading...then a heading with "page 4" etc...
I want the entire contents of anything provided by the RSIC and Walmart to you or
anyone connected with the Reno City Attorney or the Reno Municipal Court. Further, I
want all media provided by Walmart, and I question why you needed 45 minutes with
the three witness who testified at the November 30th, 2011 trial, from 1pm to 1:45pm.
753
5 of 7 12/12/2011 4:21 PM
Further, I spoke with you, Mr. Hazlett-Stevens, shortly after the September 9, 2011
arrest in this matter demanding a copy of all documentation or discovery that I had any
right to. I was told I would not have any opportunity to review such materials prior to
the arraignment, which was not set for a full 30 days out from the arrest. Do I not have
a right to a copy of the pc sheet, arrest report, and witness statements within 48 hours of
the arrest? The fax to your office from the RSIC is dated 9/12/2011, yet my written
demands and requests for such discovery and documentation were met with refusals to
provide such materials, and, in some case, claims that your office did not even have such
materials and would not get them until after the arraignment. Further, I spoke with and
provided written requests to RSIC Sargent Avansino within 2 days after the arrest and he
refused to provide the materials, as did the Reno Municipal Court. Please alert the court
to any wrongdoing on your's or the Reno City Attorney or the RSIC part in this regard in
prejudicing my ability to defend my case by delaying the production of essential
discovery, then refusing to agree to a continuance at trial, after earlier providing a
written agreement to such a continuance.
Sincerely,
Zach Coughlin, Esq.

Reno, NV 89501
tel: 775 338 8118
fax: 949 667 7402
are not the intended recipient or an ag ent responsible for delivering it to the intended recipient, y ou are hereby notified
754
6 of 7 12/12/2011 4:21 PM
755
7 of 7 12/12/2011 4:21 PM
Nevada Court Services - Attorney Page 1 of 2
The following Attorney is associated with and highly recommended by Nevada Court Services
"Serving the People of Nevada"
Lewis S. Taitel
Attorney at Law
475 S. Arlington Suite 1A
Reno, Nevada 89501
(775) 322-2272
Fax: (775) 348-7977
Nevada State Bar No. 4397
Disclaimer: "The State Bar of Nevada does not certify any lawyer as a specialist or expert.."
Criminal Law - DUI Defense - Personal Injury

Property Law - Collections - Divorce - Civil Law
Adoption - Family Law
Nevada Attorney Directory
Nevada Court Services

475 So. Arlington Suite 1A
Reno, Nevada 89501
(775) 348-7560
(Toll Free) 800-570-5583
Fax: (775) 348-7977
Email: nevcs@nevcs.com
756
http://www.nevcs.com/attorney.html 12/12/2011
Nevada Court Services - Attorney Page 2 of 2
© Copyright 1997-2011 - Nevada Court Services - All Rights Reserved
757
http://www.nevcs.com/attorney.html 12/12/2011
motion for continuance

Sent: Fri 11/11/11 1:40 AM
Zach Coughlin
121 River Rock St.
Reno, NV 89501
775 338 8118
758
privilege.

Sent: Wed 11/16/11 3:35 PM
Thank You,
759
Date: Mon, 14 Nov 2011 10:36:45 -0800

case.
Date: Fri, 11 Nov 2011 01:40:53 -0800
760
Zach Coughlin
121 River Rock St.
Reno, NV 89501
775 338 8118

Sent: Wed 11/16/11 5:30 PM
761
Zach Coughlin, Esq.

121 River Rock St.
Reno, NV 89501
775 338 8118
Licensed in Nevada
privilege.
Date: Wed, 16 Nov 2011 17:12:21 -0800

Roberts.
762
Date: Wed, 16 Nov 2011 15:35:48 -0800
Thank You,
Date: Mon, 14 Nov 2011 10:36:45 -0800

confirmation from the Court that your trial date has been continued, you will need to appear this afternoon at
1:00 pm in Courtroom B of the Reno Municipal Court. We can discuss your case further at that time and if we
a misdemeanor case.
763
Date: Fri, 11 Nov 2011 01:40:53 -0800
Zach Coughlin
121 River Rock St.
Reno, NV 89501
775 338 8118
764

Sent: Thu 11/17/11 3:37 PM
Dear Ms. Roberts,
Sincerely,
Zach

Sent: Mon 11/21/11 1:05 PM
Sincerely,
765
Zach Coughlin, Esq.

121 River Rock St.
Reno, NV 89501
775 338 8118
Licensed in Nevada
privilege.
Date: Thu, 17 Nov 2011 07:40:44 -0800

may want to view it at the City Attorney's Office as the CD doesn't seem to work on everyone's computer. Penie
Colter will be able to assist you. I am not clear on what you think my duty is, but I know what my duty is and I
Date: Wed, 16 Nov 2011 17:30:36 -0800
766
Zach Coughlin, Esq.

121 River Rock St.
Reno, NV 89501
775 338 8118
Licensed in Nevada
Date: Wed, 16 Nov 2011 17:12:21 -0800

Roberts.
767
Date: Wed, 16 Nov 2011 15:35:48 -0800
Thank You,
Date: Mon, 14 Nov 2011 10:36:45 -0800

a misdemeanor case.
768
Date: Fri, 11 Nov 2011 01:40:53 -0800
Zach Coughlin
121 River Rock St.
Reno, NV 89501
775 338 8118
769

Sent: Mon 11/21/11 4:06 PM
770
771
Zach Coughlin
privilege.

Sent: Mon 11/21/11 7:18 PM
772
Zach Coughlin, Esq.

121 River Rock St.
Reno, NV 89501
775 338 8118
Licensed in Nevada
privilege.
Date: Mon, 14 Nov 2011 10:36:45 -0800

case.
773

Date: Fri, 11 Nov 2011 01:40:53 -0800
Zach Coughlin
121 River Rock St.
Reno, NV 89501
775 338 8118
774

Sent: Mon 11/21/11 8:40 PM
Zach Coughlin, Esq.

121 River Rock St.
Reno, NV 89501
775 338 8118
Licensed in Nevada
775
FIRST CONTINUATION OF FILED
Electronically
02-24-2012:08:22:49 AM
EXHIBIT 1
Clerk of the Court
FIRST CONTINUATION OF
EXHIBIT 1
776
privilege.
Re: temporary address change and instruction to pursue a continuance

From: Ken Howard (HowardK@reno.gov)
Sent: Tue 11/22/11 7:01 AM
To: Zach Coughlin (zachcoughlin@hotmail.com); robertsp@reno.gov
Mr. Zach Coughlin
There is an appropriate manner in which to tender "motions" to the court. They are to be properly
prepared and filed. Do not use this e-mail address to communicate directly with the judge.
Ken Howard
Reno Municipal Court Judge
Department 4
(775) 326-6673
To: <howardk@reno.gov>, <robertsp@reno.gov>
Date: Mon, 21 Nov 2011 16:06:32 -0800
Subject: temporary address change and instruction to pursue a continuance
777
778
Zach Coughlin
on the contents of this information is strictly prohibited. This message is confidential, intended only for the named recipient(s)
and may contain information that is privileged, attorney work product or exempt from disclosure under applicable law. If you are
not the intended recipient(s), you are notified that any disclosure, copying, distribution or any action taken or omitted to be taken in
reliance on the contents of this information is prohibited and may be unlawful. If you receive this message in error, or are not the
named recipient(s), please notify the sender, delete this e-mail from your computer, and destroy any copies in any form immediately.
Receipt by anyone other than the named recipient(s) is not a waiver of any attorney-client, work product, or other applicable
privilege.
779

Sent: Tue 11/29/11 1:33 PM
Dear Ms. Roberts,
contact person at your office "doesn't show anything", I am not sure, and whether that is violative of your duties
have been informed that the RSIC officer committed police misconduct and yet you brazenly announce in writing
that you do not intend to follow up on that, nor do you feel compelled to.
Zach Coughlin, Esq.

Reno, NV 89501
tel: 775 338 8118
fax: 949 667 7402
780
privilege.
Date: Tue, 22 Nov 2011 07:59:37 -0800

Dear Mr. Coughlin, you will need to file a motion to continue in compliance with Reno Municipal Court
procedures. As I have stated in a previous email, I do not object to your motion to continue, however, it is up
Date: Mon, 21 Nov 2011 13:05:28 -0800
Sincerely,
Zach Coughlin, Esq.

121 River Rock St.
Reno, NV 89501
775 338 8118
Licensed in Nevada
781
Date: Thu, 17 Nov 2011 07:40:44 -0800

Date: Wed, 16 Nov 2011 17:30:36 -0800
782
Zach Coughlin, Esq.

121 River Rock St.
Reno, NV 89501
775 338 8118
Licensed in Nevada
Date: Wed, 16 Nov 2011 17:12:21 -0800

for reciprocal discovery. You just need to call ahead at 334-2050 and arrange to pick it up. You are entitled
to copies of all the reports and witness statements and video we may have on this case. Since I am not
calling any additional witnesses that are not already mentioned in the reports/statements, I am not
or interviews. Pam Roberts.
Date: Wed, 16 Nov 2011 15:35:48 -0800
783
Thank You,
Date: Mon, 14 Nov 2011 10:36:45 -0800

confirmation from the Court that your trial date has been continued, you will need to appear this
afternoon at 1:00 pm in Courtroom B of the Reno Municipal Court. We can discuss your case further at
that time and if we are unable to resolve the case, you can ask the Court again for a continuance and I
It is also the Court's decision whether to appoint you a legal defender. I do not plan to ask for jail time,
so the Court is not required to appoint you an attorney. In addition, you have no right to a jury trial in
a misdemeanor case.
Date: Fri, 11 Nov 2011 01:40:53 -0800
784
Zach Coughlin
121 River Rock St.
Reno, NV 89501
775 338 8118
785

Sent: Tue 11/29/11 3:14 PM
1 attachment

Zach Coughlin, Esq.

Reno, NV 89501
tel: 775 338 8118
fax: 949 667 7402
786
privilege.
Date: Tue, 22 Nov 2011 17:22:45 -0800
Zach Coughlin,
6:49 mark
Sent: Sun 12/04/11 3:37 AM
787
Zach Coughlin, Esq.

Reno, NV 89501
tel: 775 338 8118
fax: 949 667 7402
privilege.
788
6:49 mark
Sent: Sun 12/04/11 3:45 AM
789
Zach Coughlin, Esq.

Reno, NV 89501
tel: 775 338 8118
fax: 949 667 7402
privilege.
Date: Sun, 4 Dec 2011 03:37:24 -0800
790
Zach Coughlin, Esq.

Reno, NV 89501
tel: 775 338 8118
fax: 949 667 7402
privilege.
6:49 mark
791

Sent: Sun 12/04/11 4:05 AM

792
Zach Coughlin, Esq.

Reno, NV 89501
tel: 775 338 8118
fax: 949 667 7402
793
privilege.
discovery request;
Sent: Wed 12/07/11 1:16 AM
794
Zach Coughlin, Esq.

Reno, NV 89501
tel: 775 338 8118
fax: 949 667 7402
privilege.

Sent: Thu 12/08/11 3:44 PM
795
Zach Coughlin, Esq.

Reno, NV 89501
tel: 775 338 8118
fax: 949 667 7402
796
privilege.
Date: Wed, 7 Dec 2011 07:34:25 -0800

aware that I cannot communicate with a you as a represented party. Do not contact me without your counsel.
Thank you,
Chris
City of Reno
Tel: 326-6628
Fax: 334-4226
Date: Wed, 7 Dec 2011 01:48:03 -0800
797

and after I procure another attorney. I did not agree to the continuance you sought, nor
was I informed you were seeking it. I find it particularly troubling that a continuance was
COMPLAINTS I HAVE AGAINST YOU AND YOUR OFFICE'S HANDLING
THE RMC OR MS. ROBERTS, PERHAPS SHE WAS TOO BUSY ALLEGEDLY
connected with the Reno City Attorney or the Reno Municipal Court. Further, I want all
witness who testified at the November 30th, 2011 trial, from 1pm to 1:45pm.
Further, I spoke with you, Mr. Hazlett-Stevens, shortly after the September 9, 2011 arrest
in this matter demanding a copy of all documentation or discovery that I had any right to.
I was told I would not have any opportunity to review such materials prior to the
arraignment, which was not set for a full 30 days out from the arrest. Do I not have a
arrest? The fax to your office from the RSIC is dated 9/12/2011, yet my written demands
and requests for such discovery and documentation were met with refusals to provide such
would not get them until after the arraignment. Further, I spoke with and provided written
on your's or the Reno City Attorney or the RSIC part in this regard in prejudicing my
798
continuance.
Sincerely,
Zach Coughlin, Esq.

Reno, NV 89501
tel: 775 338 8118
fax: 949 667 7402
799
800
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FILED
SECOND CONTINUATION OF Electronically
02-24-2012:08:22:49 AM
EXHIBIT 1
Clerk of the Court
SECOND CONTINUATION OF
EXHIBIT 1
817
818
11 cr 22176 2I
x

"Ellis" or "John", Customer Service Manager or ASM W. 7th St. Walmart 89503
Zach Coughlin
29th November 2011
819
2:06-cv-10887-GCS-VMM Doc # 1 Filed 02/28/06 Pg 1 of 19 Pg ID 1
820
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6 again, that is rmc 11 cr 22176
839
RENO MUNICIPAL COURT
P.O. Box 1900
Reno, NV 89501
(775) 334-2290
Fax (775) 334-3824
E-mail address: RenoMuniRecords@reno.gov
RECORD REQUEST
INSTRUCTIONS: 11 28 2011
Request Date: ______________
1. Print out this request form.
2. Fill the form out completely.
3. Mail, fax or email your request to the Court.
4. You will be notified when your records are ready for pick up.
Copies may take 3-4 weeks
File Information:
Defendant’s Name: ______________________________________

Zach Coughlin 9/27/1976
Date of Birth: _______________________
Reno Police #11-22185
Reno Police Case/Citation Number: ____________________________________________________________
(If you do not have this number you can contact Reno Police Department at 775-334-2175)
trespass
Charge(s):_________________________________________________________________________________
November 13th, 2011

Charge Date: ______________________________________________________________________________
Requestor:
Zach Coughlin
Name: ____________________________________________________________________________________
817 N. Virginia St
Mailing Address: ___________________________________________________________________________
775 338 8118
Phone Number: ___________________________ 949 667 7402
Fax Number: ____________________________________
zachcoughlin@hotmail.com
E-mail address: _____________________________________________________________________________
CHECK ONE:
x Computer printout: This includes case history and disposition. ($0.30 per page)
Certified computer printout: This includes case history and disposition, all copies certified. ($3.00 per page)
I.N.S. Certified copies: ($3.00 per page)

x
Other documents: (Please specify) __________________________________________________________
and and all documents, and audio/video materials
pc sheet, witness statements, related police reports
You will be notified by phone or e-mail of the cost and when to pick up your records
dispatch recordings, 911 calls or other phone calls
840
Court Rules and Procedures
Rule 1: Applicability of Rules
A. These rules may be referred to as the Reno Municipal Court rules and
may be abbreviated as R.M.C.R. These rules are intended to supercede
the rules promulgated and made effective on January 1, 1980 by the
Reno Municipal Court.
B. Whenever it appears that a particular situation does not fall within the
purview of a rule, or that a literal application of a rule would cause a
hardship or injustice in a case, the court may make such order as the
interests of justice require.
Rule 2: Organization of the Court
A. The Municipal Court consists of a number of departments designated by

City Council resolution, each presided over by a judge duly elected or
appointed to that position. Judges pro tem may sit in each department
from time to time as authorized by law. A judge pro tem duly appointed
and authorized by the presiding judge of a particular department to sit in
that department shall have the same jurisdiction as the presiding judge,
except that the judge pro tem has jurisdiction only over matters to be
heard on his or her assigned docket. Judges pro tem are not permitted to
act on any motion filed in any case, except those requiring resolution
before a case can proceed on the docket to which the pro tem judge is
assigned.
B. All cases set for trial or other post-arraignment proceeding, except a
sentencing set by the arraigning judge, shall be randomly or sequentially
assigned to one of the departments. Insofar as is practical, all cases
pertaining to a defendant shall be assigned to the same judge. In the
event a judge must recuse himself or herself, the matter shall be sent to
the administrative judge for reassignment to another department.
C. The elected or appointed judges of each department may act for one
another by mutual agreement as circumstances dictate.
D. Each year, the elected or appointed judges shall select one of their
number to act as administrative judge for the upcoming fiscal year. The
administrative judge shall handle all court administrative matters and
shall be authorized to speak publicly for the court on matters of court
policy.
841
Rule 3: Authorization to Represent

the motion or set a hearing.
Rule 4: Motions
A. Except for good cause shown, all motions shall be accompanied by

affidavit, and, when appropriate, by points and authorities. All motions
must be served on the opposing party and must be file stamped along
with accompanying proof of service.
B. The opposing party may file and serve answering points and authorities
on the moving party within 10 days after service of a motion.
C. The moving party may file and serve reply points and authorities within 5
days thereafter.
D. Upon the expiration of any time period set for response by this rule,
either party may file and serve a written request for submittal of the
motion, or the court may consider the motion submitted.
E. An opposition to a motion must state the reason(s) for objection.
F. Motions shall be decided without oral argument unless oral argument is
ordered by the court.
Rule 5: Motions by Facsimile
telephone number.
842

granted.
Rule 7: Corporations
Except with the permission of the court, a corporation or other business entity
shall not appear in propria persona.
Rule 8: Courtroom Conduct and Attire
Proceedings in court should be conducted with dignity and decorum. All

persons appearing in the court must be appropriately attired. All attorneys
must wear appropriate business attire.
Rule 9: Appeals to District Court

the date that judgment is rendered.
Effective January 1, 2000
843
11 cr 22176 2I
x

Janice store clerk walmart arrest receipt cashier 2nd St. 89501 Walmart
Zach Coughlin
29th November 2011
844
11 cr 22176 2I
x

Brian Bain 2nd st Walmart Reno and LP supervisor 2nd St. 89501 Walmart
Zach Coughlin
29th November 2011
845
11 cr 22176 2I
x
and subpoena duces tecum

please appear and further bring any evidence including media related to
retaliatory threats by walmart staff or lp personnel
John Ellis and ASM "Connie" 7th St. Walmart
Janice cashier , Brian Bain Store Manager; LP manager, 2nd ST. Walmart
Zach Coughlin
29th November 2011
Declaration asdfsadf under penalty of perjury NRS
emailed
29th NOvember, 2011 faxed to or
29th November 2011
/s/ zach coughlin, signed electroncially
29th NOvember 2011 notary not required where
dsafsdfaasdffdasfsafds
Declaration under penalty
of perjury made NRS df
846
QUERY - "CIVIL RECOVERY" W/255 DATABASE(S) -
WAL-MART ALLCASES,ST-ANN-ALL,NV-RULES,NV-AD
C,ALR,AMJUR,LAWREV-PRO
1. Odor v. Wal-Mart Stores East, Ltd. Partnership,

Slip Copy, 2011 WL 3203760, E.D.Ky., July 07, 2011 (NO. CIV.A.
10-287-WOB)
...endangerment in the second degree is a Class A misdemeanor. FN4. KRS §

446.070 provides: Penalty no bar to civil recovery: (1) A person injured by the
violation of any statute may recover from the offender such damages as he sus-
tained ...
...Defendant violated these statutes. In fact, the only facts asserted are that
Plaintiff was struck by an automobile while in Wal– Mart's parking lot and that
Wal– Mart failed to use “appropriate and reasonable means to properly control,
operate and/or manage its premises.” (R. 14–1, ¶...
2. White v. Wyeth,
227 W.Va. 131, 705 S.E.2d 828, 2010 WL 5140048, W.Va., December 17, 2010
(NO. 35296)
...applicable to a common-law fraud claim applied, the Supreme Court noted that
“[r]eliance is not a general limitation on civil recovery in tort.” Id. at 655, 128
S.Ct. 2131. The Court went on to say in Bridge that “while it may ...
...must, if possible, be given to every section, clause, word or part of the statute.”
Syl. Pt. 3, Meadows v. Wal– Mart Stores, Inc., 207 W.Va. 203, 530 S.E.2d 676
(1999) We recognize that some states require reliance on the deceptive...
3. Crouch v. Johnson & Johnson Consumer Co., Inc.,

Slip Copy, 2010 WL 1530152, D.N.J., April 15, 2010 (NO.
CIVA09-CV-2905(DMC))
...construed to limit a person's right to seek punitive damages where appropriate.

FN4. K.R.S. 446.070 Penalty no bar to civil recovery. “A person injured by the
violation of any statute may recover from the offender such damages as he sus-
tained by ...
...2006 to 2008 purchased Defendants' products. J & J is a New Jersey corpora-

tion engaged in business throughout the United States. Wal-Mart is an Arkansas
corporation engaged in business throughout the United States. Therefore, the
Kentucky State contacts in the instant matter...
4. Kelly v. Palmer, Reifler, & Associates, P.A.,

681 F.Supp.2d 1356, 2010 WL 111492, 22 Fla. L. Weekly Fed. D 599, S.D.Fla.,
© 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

847
January 11, 2010 (NO. 08-21843-CIV)
...with either of these claims sufficient to send them to the jury. 18 FN18.
Plaintiffs focus on the allegedly deceptive civil recovery practices employed by
the Palmer Law Firm but do not claim the amount of money Simon and Baum
paid was ...
...pursue civil theft claims against them. Notwithstanding Plaintiff Simon's testi-
mony that she did not believe her son stole anything from Wal-Mart and she
only paid because she wanted to avoid being sued and incur additional legal ex-
penses [D.E. 165-3 at ...
...of these Plaintiffs can legitimately claim that there was no possible basis for re-
covery under § 772.11 , which contemplates civil recovery for attempted
shoplifting. See § 772.11(1) “Any person who proves by clear and convincing
evidence that he or...
5. Robinson v. Rooto Corp.,

617 F.Supp.2d 748, 2008 WL 1999325, W.D.Tenn., May 06, 2008 (NO. 07-2543)
...E.D.Pa.2007) “I adopt the view of those courts that the FHSA has no private
right of action Gibson v. Wal– Mart Stores, Inc., 189 F.Supp.2d 443, 449
(W.D.Va.2002) “The FHSA provides for no private right of action State tort ...
...precedents outside the Third Circuit, I find that the FHSA does not contain a
private cause of action.” Isgett v. Wal– Mart Stores, Inc., 976 F.Supp. 422, 429
(S.D.Miss.1997) “In sum, except for the first Cort inquiry, all of the other ...
...Cross v. Bd. of Supervisors, 326 F.Supp. 634 (N.D.Cal.1968) (holding, seven

years before the Supreme Court decided Cort, that “[ c]ivil [ r]ecovery under the
FHSA may be applied under appropriate circumstances [2] A few courts have
also applied the reasoning of Riegel...
6. Stringer v. Wal-Mart Stores, Inc.,

151 S.W.3d 781, 2004 WL 2363767, 150 Lab.Cas. P 59,920, 21 IER Cases 1682,
Ky., October 21, 2004 (NO. 2001-SC-0262-DG)
...a claim for common law invasion of privacy, the trial court appears to have
treated Appellants' claim as one for civil recovery for a violation of a statute. Ac-
cordingly, we, like the Court of Appeals below, will evaluate the claim as Appel-
lants ...
...The Court of Appeals held that: (1) the trial court erred when it granted partial
summary judgment for Appellants because “Wal– Mart's conduct in recording
conversation in the claims area as a mere incident of their intent to video the area

848
fall[s] short of intent [W]e are convinced that the acts of Wal– Mart were not of-
fensive to the eavesdropping statute” ; and (2) Appellees were entitled to a direc-
ted verdict at trial because Appellants ...
...suffered as a result of the recorded conversations, and we think it incumbent

upon appellees to demonstrate injury resulting from Wal– Mart's audio surveil-
lance. Hence, we are of the opinion that appellees failed to prove damages flow-
ing from the illegally recorded conversations...

849
FILED
Electronically
02-24-2012:08:22:49 AM
EXHIBIT 2
Clerk of the Court
EXHIBIT 2
850
851
RenoMuniRecords@reno.gov
October 3, 2011
Dear Reno City Attorney Records Department,
a copy of these records. I believe this case should be dismissed.
Sincerely,
Zach Coughlin signed electronically and signed in attached PDF. I can come
pick the records up with identification if that is required or I hereby give you
Zach Coughlin
121 River Rock St.
Reno, NV 89501
Sincerely,
Zach Coughlin
contents of this information is strictly prohibited.
852
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Clerk Accepted: 02-23-2012:14:14:57
Document(s) Submitted: Answering Brief
COUGHLIN
902
FILED
Electronically
03-08-2012:04:41:14 PM
Clerk of the Court
903
904
905


Clerk Accepted: 02-24-2012:10:46:09
- **Continuation
- **Continuation
- **Continuation
- **Continuation
COUGHLIN
906
FILED
Electronically
03-15-2012:06:21:48 PM
Clerk of the Court
907
908
909


Clerk Accepted: 03-08-2012:16:42:00
Document(s) Submitted: Ord Denying Motion
Filed By: MaryBeth Stackhouse
COUGHLIN
910
FILED
Electronically
03-15-2012:06:21:48 PM
Clerk of the Court
911
912
913
914
FILED
Electronically
03-26-2012:11:33:50 PM
1 Document Code: Clerk of the Court
3
PO BOX 60952
Reno, NV 89506
4 Tele: 775-338-8118
Fax: 949-667-7402
6

8
9
ZACH COUGHLIN; )
10 )
)
vs. )
12
) Dept No: 10
13 )
City of Reno; )
14 )
)
15
Respondent. )
16 )
)
17
18
MOTION FOR NEW TRIAL, OR PLED IN THE ALTERNATIVE, MOTION TO ALTER
19 OR AMEND
20 COMES NOW, Appellant, Zach Coughlin, by and through himself as he was denied his
21
Sixth Amendment Right To Counsel, and files this MOTION FOR NEW TRIAL, OR PLED IN
22
THE ALTERNATIVE, MOTION TO ALTER OR AMEND, based upon the pleadings and papers
23
on file in this matter, both in this appeal and the underlying RMC 11 CR 22176 and the following
24
25 legal argument. The undersigned files this Motion with the intent to file a Supplemental to it and
26 further seeks an extension of time to do so given he was evicted from his home law office on 3/15/12
27
by gunpoint after Washoe County Sheriff's Deputies seemingly failed to follow the law in “serving”
28
- 1 -
MOTION FOR NEW TRIAL, OR PLED IN THE ALTERNATIVE, MOTION TO ALTER OR AMEND
915
1 an eviction order (one does not accomplish “personal service” by breaking and entering at gunpoint,
2 constructive service is what the law calls for, regard of whether one thinks “the usual and customary
3
practice of the WCSO” is tantamount to black letter law, NRS 40 requires that NRCP control in
4
landlord tenant matters, thus NRCP 6(a) and 6(e) should be controlling.
5
6
LEGAL ARGUMENT
7
RMC Filing Office Supervisor Donna Ballard has admitted to the undersigned that she
8
9
completely failed in upholding her duties in the filing office in terms of making sure the record on
10 appeal was an accurate, legible, faithfull reproduction of what was filed by the undersigned. To
11 wit, entire filign are missing from the record on appeal and a systemic lack of oversight in the
12
RMC and impermissible lessening of the oversight function fo the RMC filing office is evident
13
from admission of RMC staff and actions by the RMC filing office and Court Administrator
14
Cassandra Jackson and RMC Filing Office Supervisor Donna Ballard. Further an impermissilbe
15
16 lack of transparency exists in the RMC Filing office and the access to justice and records by the
17 public is curtailed to an unacceptable extent in the RMC filing office.

18
One, Pam Roberts loses under a Polk analysis on whether an acutal court hearing is
19
required in this criminal appeal by her failure to oppose the undersigned argument that the statue
20
requires a hearing and Roberts failed to set forth an argument against such. Further, Roberts
21
22 conveniently chose not to respond to any of the undersigned argument in his Opening Brief, and
23 where Polk has been applied by this very Department in other cases recently where the
24
undersigned is a party, fairness may suggest it should be applied to Roberts and the City of Reno
25
here.
26
27
NRCP RULE 59. NEW TRIALS; AMENDMENT OF JUDGMENTS (a)
28 Grounds. A new trial may be granted to all or any of the parties and on all or part
- 2 -
916
1 of the issues for any of the following causes or grounds materially affecting the
substantial rights of an aggrieved party: (1) Irregularity in the proceedings of the
2 court, jury, master, or adverse party, or any order of the court, or master, or
3 abuse of discretion by which either party was prevented from having a fair trial;
4 The record on appeal forward by the RMC and the certified docket are substantially deficient and
5 RMC filign office supervisor Donna Ballard has indicated a lack of conern in that respect to the
6
undersigned recently, indicating that the “Departments control everything” and that “she just does
7
what she is told” and that she “can't remember if she printed out copies of the filings” that she agree
8
9
the undersigned was allowed to file through email means, or whether she passed such printouts to the
10 appropriate judicial assistant or court adminstrator. Further, Pam Roberts was provided a CD
11 transcript of the short 6 hour trial and it was sufficiently cited to in the Opening Brief to justify
12
reversing the trial court's decision.
13
14
(2) Misconduct of the jury or prevailing party;
15
16 Pam Roberts suborned perjury in countenancing the testimony of Kameron

Crawford where his testimony directdly conflicted with the video evidence
17 Roberts herself propouned durign the discovery phase.
18
19 (3) Accident or surprise which ordinary prudence could not have guarded
against;
20
The undersigned power was impermissilby shut off by NV Eneregy on
21
approximately February 3rd 2012, in a manner that is violative of state and
22 federal law and based upon a retaliatory motive on NV Eneregy's part, and
interference by the domestic abusers against whom protection orders where
23 issues in FV12-00188, 187.
24
25 (4) Newly discovered evidence material for the party making the motion which
the party could not, with reasonable diligence, have discovered and produced at
26 the trial; \\
27
evidence evincing a retaliatory intent on Wal-Mart's part is now availabe to the
28 udnersigned whereas before the unlawful rent distraint applied by Richard Hill
- 3 -
917
1 incident to an impermissilbe Summary Eviction Order of 10/31/12 is not
available to the undrsigned an is necessary for thi scourt to review to reach a just
2 result, particulary where a property right, the undersigned law license vis a vis
3
SCR 111 is at stake.
4
(5) Manifest disregard by the jury of the instructions of the court; (6) Excessive
5 damages appearing to have been given under the influence of passion or
6
prejudice; or,
7 This is particularly true of Judge Howard's sentencing the udnersigned to 3 days

incarceration whilse denyting the Sixth amdnment right to counel while the
8
9
(7) Error in law occurring at the trial and objected to by the party making the
10 motion. On a motion for a new trial in an action tried without a jury, the court
may open the judgment if one has been entered, take additional testimony,
11 amend findings of fact and conclusions of law or make new findings and
conclusions, and direct the entry of a new judgment.
12
In re Overstreet, 851 S.W.2d 458 (Ky., Jan 21, 1993) (NO. 91-SC-596-OA)
13 History Direct History => 1 In re Overstreet, 851 S.W.2d 458 (Ky. Jan 21, 1993)
(NO. 91-SC-596-OA) KEYCITE In re Overstreet, 851 S.W.2d 458 (Ky. Jan 21,
14 1993) (NO. 91-SC-596-OA) Citing References Secondary Sources (U.S.A.) 1
Am. Jur. 2d Clerks of Court s 20, Grounds for removal (2012) HN: 1 (S.W.2d) 2
15
Am. Jur. 2d Clerks of Court s 21, Grounds for removal-Particular applications
16 (2012) HN: 1 (S.W.2d) 3 STATE CONSTITUTIONAL LAW SURVEY, 21 N.
Ky. L. Rev. 257, 267+ (1994) HN: 1 (S.W.2d) Judges and Attorneys Supreme
17 Court of Kentucky. In re Ray L. OVERSTREET, Casey Circuit Court Clerk. No.
91–SC–596–OA. Jan. 21, 1993. As Amended Jan. 21, 1993. Rehearing Denied
18
April 22, 1993. In original proceeding to show cause why county circuit court
19 clerk should not be removed from office or otherwise disciplined, the Supreme
Court, Stephens, C.J., held that failure of clerk of court to maintain proper
20 records, to deposit monies intact promptly into state depository bank and to
maintain appropriate bank account accruing interest paid to State Treasury was
21
good cause for removing clerk from office. So ordered. West Headnotes Clerks
22 of Courts 79 8 79 Clerks of Courts 79k8 k. Resignation, Suspension, or
Removal. Most Cited Cases Failure of clerk of court to maintain proper records,
23 to deposit monies intact promptly into state depository bank and to maintain
appropriate bank account accruing interest paid to State Treasury was good
24
cause for removing clerk from office; clerk was provided sufficient educational
25 opportunities and materials to enable him to know how to properly fulfill his
legal responsibilities, and it was his responsibility to remit the public funds even
26 if he employed another person to perform certain bookkeeping and ministerial
duties for the office. Const. § 114(3). *459 OPINION AND ORDER This is an
27
original proceeding in this Court which requires Ray L. Overstreet, Casey
28 County Circuit Court Clerk, to show cause why he should not be removed from
- 4 -
918
1 office or otherwise disciplined pursuant to Section 114(3) of the Kentucky
Constitution for reasons alleged in a report by the Auditor of Public Accounts
2 for the Commonwealth of Kentucky. The question to be determined is whether
3
certain deficits or other reported alleged improprieties in the office of Ray L.
Overstreet resulted from the improper handling of state funds or were part of a
4 series of transactions that constituted improper handling of state funds. On June
25, 1991, Overstreet was ordered to appear before the Supreme Court of
5 Kentucky on August 20, to show cause why he should not be removed from
6
office or otherwise disciplined. In an order entered August 29, the Court
determined that it was necessary to receive evidence in order to resolve the
7 matter, and a Special Commissioner was appointed to receive evidence and file a
report, including findings of fact, conclusions of law and recommendations. The
8 Kentucky Constitution Section 114(3) states in pertinent part that clerks of the
9
circuit court shall be removable from office by the Supreme Court for good
cause shown. No other penalty is provided by the Constitution. K.R.S.
10 30A.010–.250 imposes certain duties on circuit clerks including the K.R.S.
30A.080 requirement of maintaining proper records, the K.R.S. 30A.120 and .
11 200 requirements of depositing monies promptly in a state depository bank, and
the K.R.S. 30A.205 requirement of maintaining an appropriate bank account
12
accruing interest for the Commonwealth of Kentucky, to be paid to the State
13 Treasury as are other monies due the State. We must conclude that the operation
of the Casey Circuit Clerk's office violates these statutory standards. It is the
14 responsibility of the clerk to remit the public funds even if he employs another
person to perform certain bookkeeping and ministerial duties for the office. The
15
principal evidence is the 1991 report of the Auditor of Public Accounts
16 regarding the responsibilities of the Casey Circuit Clerk for the fiscal year
ending June 30, 1990. The audit found violations of the statutes and the
17 Administrative Office of the Courts accounting manual consisting of 1) a deficit
of $27,211.00, $5,074 of which had accumulated in the last fiscal year; 2) a
18
failure to deposit receipts intact to the bank in a timely fashion; 3) a failure to
19 record and remit to the State $9,039 in interest dating back to 1984; 4) a failure
to maintain payable ledger cards; and 5) a failure to prepare bank reconciliations.
20 For his defense, Overstreet seeks to shift responsibility for the problems of the
circuit clerk's office to AOC. Overstreet made full restitution without contesting
21
the amount although he challenged the propriety of the proceedings to remove
22 him. The testimony of Overstreet's Chief Deputy and wife, Nina Overstreet,
established that she had some years of experience in handling money in several
23 public offices and had served as Special Tax Commissioner for Casey County
sheriffs beginning in 1970 when her husband was first elected to that post and
24
continuing until 1990. The clerk must assume responsibility for his office. He or
25 she cannot attempt to transfer responsibility to any other person or entity. The
evidence in this case indicates that the AOC provided sufficient educational
26 opportunities and materials to Overstreet in order to enable him to know how to
properly fulfill his legal responsibilities. There is evidence that Overstreet and
27
his wife attended several of the educational presentations made by the AOC.
28 Testimony also indicated that the manuals provided for circuit clerks are written
- 5 -
919
1 in a clear and easily understood language so that following the directions of the
manual are relatively simple. We believe that there was sufficient educational
2 and training opportunities provided for or available to Overstreet. There was also
3
considerable evidence that the AOC provided assistance when requested from
Overstreet. *460 Although the 1991 audit was the first to which the Casey
4 Circuit Clerk's office had been exposed since Overstreet assumed office in 1976,
this does not excuse the failure to report or properly handle state funds in the
5 amount of $27,211. It is the responsibility of the circuit clerk to comply with the
6
statutes of this Commonwealth. Failure to do that will subject the Clerk to
removal from office for good cause shown. We believe that Ray L. Overstreet
7 has failed to properly discharge the duties imposed upon him as Circuit Clerk of
Casey County as detailed in K.R.S. 30A.010–.250. Among the deficiencies are
8 the failure to maintain proper records, the failure to deposit monies intact
9
promptly into a state depository bank and the failure to maintain an appropriate
bank account accruing interest which is to be paid to the State Treasury. We find
10 that Ray L. Overstreet has not provided a reasonable explanation for the
deficiencies. Therefore, we find that good cause exists for removing Ray L.
11 Overstreet, Clerk of the Casey County Circuit Court, from office for the
remainder of his present term and he is now so removed. Section 114(3)
12
Kentucky Constitution. The Office of Clerk of the Casey County Circuit Court is
13 declared vacant. Ray ...431 Profiler END OF DOCUMENT American
Jurisprudence, Second Edition Database updated February 2012 Clerks of Court
14 Lonnie E. Griffith, Jr., J.D. III. Title, Tenure, Removal, or Suspension C.
Removal or Suspension from Office 1. Removal from Office Topic Summary
15
Correlation Table References § 21. Grounds for removal—Particular
16 applications West's Key Number Digest West's Key Number Digest, Clerks of
Courts 8 Examples of sufficient grounds for removing a clerk of court from
17 office include: • misappropriation of funds to the clerk's personal use[1] • a
conviction of theft in office giving rise to a statutory disqualification[2] • the
18
failure to maintain proper records and accounts[3] • making disparaging
19 statements about a judge[4] • an offense involving moral turpitude[5] • willful
misconduct in office[6] • failure to follow to the letter and in the utmost good
20 faith the direction of the judge[7] • misfeasance in office or neglect of official
duty tantamount to fraud[8] [FN1] Lewis v. State ex rel. Evans, 387 So. 2d 795
21
(Ala. 1980). [FN2] State ex rel. Corrigan v. Haberek, 35 Ohio St. 3d 150, 518
22 N.E.2d 1206 (1988). [FN3] In re Overstreet, 851 S.W.2d 458 (Ky. 1993). [FN4]
Voigt v. Savell, 70 F.3d 1552 (9th Cir. 1995). [FN5] Lewis v. State ex rel.
23 Evans, 387 So. 2d 795 (Ala. 1980). [FN6] In re Antonelli, 429 Mass. 644, 711
N.E.2d 104 (1999). [FN7] State ex rel. Core v. Merrifield, 202 W. Va. 100, 502
24
S.E.2d 197 (1998). [FN8] Commonwealth ex rel. Attorney General v. Furste,
25 288
Ky. 358, 156 S.W.2d 198 (1941). © 2012 Thomson Reuters. 33-34B © 2012 Thomson
26
Reuters/RIA. No Claim to Orig. U.S. Govt. Works. All rights reserved. AMJUR CLERKSOFCT §
27
28 21 END OF DOCUMENT American Jurisprudence Proof of Facts 3d Database updated June
- 6 -
920
1 2011 Categorical List of Articles Termination or Demotion of a Public Employee In Retaliation
2 For Speaking Out As a Violation of Right of Free Speech Hon. D. Duff Mckee [*] TABLE OF
3
CONTENTS Article Outline Scope Index Research References Topic of Article: Proof that a
4
public employee was terminated or demoted in retaliation for jumping the chain of command to
5
6
blow the whistle on a superior, in violation of the employee's constitutional right of free speech.
7 The issue may arise in any employment case involving an adverse personnel action taken in
8 apparent retaliation for the employee speaking out on a controversial subject or on a subject
9
critical of the public agency, its policies, or its administrators, or in revealing instances of
10
malfeasance or misfeasance on the part of the agency or its administrators. ARTICLE OUTLINE I
11
Background A Preliminary Matters § 1 Introduction § 2 Scope of article B Elements of Section
12
13 1983 § 3 In general § 4 Defendants in Section 1983 actions—Government entities § 5 Defendants
14 in Section 1983 actions—Government employees sued in individual capacity § 6 Pleading

15
considerations § 7 Choice of forum § 8 Pendent jurisdiction § 9 Jury trial vs. court trial C
16
Application To Employment Cases § 10 The Supreme Court decisions § 11 Constitutional
17
requirements for the cause of action § 12 False speech as a defense § 13 Strategic considerations §
18
19 14 The first test: speech on a matter of public concern—Generally § 14.3 The first test: speech on
20 a matter of public concern—Speech as part of customary duties; policymakers § 14.5 The first
21
test: speech on a matter of public concern— Consideration of employee's motive § 14.7 The first
22
test: speech on a matter of public concern— Employee speaking as a citizen § 15 The second test:
23
a balancing of interests § 16 The third test: proximate cause § 17 The final test: defense of
24
25 inevitability § 18 Problems in evaluation § 18.5 Pretext; intent to retaliate D Damages § 19
26 Remedies available under Section 1983 § 20 General damages for emotional distress § 21 Front
27
pay as an element of monetary damages § 22 Punitive damages § 23 Damages; checklist § 24
28
- 7 -
921
1 Attorney fees E Defense Considerations § 25 Overview of defense strategy § 26 Statutes of
2 limitations II Discovery A Strategic Considerations § 27 Planning for written discovery § 28
3
Utility of Freedom of Information requests § 29 Deposition strategies § 30 Who to depose B
4
Model Discovery Requests § 31 Request for admissions § 32 Interrogatories to defendant § 33
5
6
Request for production of documents III Elements of Proof § 34 Elements of claim; checklist IV
7 Proof of Retaliatory Discharge A Introduction § 35 Facts and background B Plaintiff's Testimony
8 § 36 Witness introduction and background § 37 Absence of good reason for demotion § 38

9
Validity or truthfulness of criticisms and statements made § 39 Subject of complaints are matters
10
of public concern § 40 The incident of claimed free speech § 41 Police chief retaliates § 42
11
Plaintiff's damages C Mayor's Testimony § 43 Introduction and preliminary matters § 44 Mayor's
12
13 version of the conversations with the deputy § 45 Deputy chief's complaints were matters of
14 public concern § 46 City delegates authority to police chief § 47 Deputy chief's complaints not
15
false or malicious § 48 Retaliation a proximate cause of the demotion § 49 The balancing test; no
16
legitimate interest in suppressing such speech § 50 Further retaliation; failure to reappoint D
17
Expert's Testimony: Retired Division Commander § 51 Events leading up to the demotion § 52
18
19 Incident of claimed free speech § 53 Plaintiff's complaints legitimate § 54 Plaintiff's demotion §
20 55 No valid reason for demotion or failure to be reappointed § 56 The balancing test; no legitimate
21
interest in suppressing such speech V Jury Instructions § 57 "Good cause" requirement § 58
22
Constitutional issues § 59 Burden of proof § 60 Damages VI Bibliography § 61 Books and
23
periodicals Research References Topic of Article: Proof that a public employee was terminated or
24
25 demoted in retaliation for jumping the chain of command to blow the whistle on a superior, in
26 violation of the employee's constitutional right of free speech. The issue may arise in any
27
employment case involving an adverse personnel action taken in apparent retaliation for the
28
- 8 -
922
1 employee speaking out on a controversial subject or on a subject critical of the public agency, its
2 policies, or its administrators, or in revealing instances of malfeasance or misfeasance on the part
3
of the agency or its administrators. INDEX Absence of good reason for adverse employee action
4
taken, §§37,55 Administrative remedies, exhaustion, § 8 Admissions, request for, § 31
5
6
Application of 42 USCA § 1983 to employment cases, §§10–18 Appointed employee, failure to
7 reappoint, §§50,55 Attorney fees, § 24 Authority delegated to police chief by city, § 46
8 Background information, §§1–26,35,36 Balance of interests test, constitutional requirements for

9
cause of action, §§10,11,15,49,56 Bench trial vs jury trial, § 9 Bibliography, § 61 Books and
10
periodicals, bibliography, § 61 Burden of proof, §§ 5 et seq. Capacity of defendants, official vs
11
individual, §§4–6 Causation, constitutional requirements for cause of action, §§10,11,16,48
12
13 Checklists, §§23,34 Chief of police, case involving deputy chief of police, §§35–56 Choice of
14 forum, § 7 Choice of law, §§7,26 Commander of division's testimony, case involving deputy chief
15
of police, §§51–56 Compensatory damages, § 19 Constitutional issues, jury instructions, § 58
16
Constitutional requirements for cause of action, §§10–17,39,45,48,49,56 Damages, §§3,4,19–
17
24,42,60 Decisions of Supreme Court, § 10 Defendants, generally, §§4–6 Defenses and defense
18
19 considerations, §§3,5,12,17,25,26 Delegation of authority to police chief by city, § 46 Deposition
20 strategies, §§29,30 Deputy police chief as public employee, case involving, §§35–56 Discovery,
21
§§27–33 Division commander's testimony, case involving deputy chief of police, §§51–56
22
Document production, request, § 33 Elements of claim, checklist, § 34 Elements of proof, § 34
23
Elements of 42 USCA § 1983, §§3–9 Emotional distress, general damages, § 20 Evaluation
24
25 problems, § 18 Events leading up to demotion, § 51 Exemplary damages, §§4,22 Exhaustion of
26 administrative remedies, § 8 Expert's testimony, §§51–56 Facts, proof of retaliatory discharge, §

27
35 Failure to reappoint employee, §§50,55 Falseness of employee's complaints, § 47 False speech
28
- 9 -
923
1 as defense, § 12 Fees, attorney, § 24 42 USCA § 1983 cause of action, §§ 1 et seq. Forum choice,
2 § 7 Freedom of information requests, utility, § 28 Front pay as element of monetary damages, § 21
3
Further retaliation, § 50 General damages for emotional distress, § 20 Good cause requirement,
4
jury instructions, § 57 Good reason absent for adverse employee action taken, §§37,55 Governing
5
6
law, §§7,26 Immunity, defenses, §§3,5 Incident of claimed free speech, §§40,52 Individual
7 capacity of defendants, §§4–6 Inevitability defense, § 17 Injunctions, §§3,19 Instructions to jury,
8 §§57–60 Interest balancing test, constitutional requirements for cause of action, §§10,11,15,49,56
9
Interrogatories to defendant, § 32 Introduction to article, § 1 Jurisdiction, §§7,8 Jury instructions,
10
§§57–60 Jury trial vs court trial, § 9 Lawyers, fees, § 24 Legitimacy of interest in suppressing
11
speech, balance of interests test, §§10,11,15,49,56 Legitimacy of plaintiff's complaints, § 53
12
13 Limitation of actions, § 26 Maliciousness of employee's complaints, § 47 Mayor's testimony in
14 case involving deputy chief of police, §§43–50 Mental distress, general damages, § 20 Model
15
discovery requests, §§31–33 Official capacity of defendants, §§4–6 Overview of defense strategy,
16
§ 25 Pendent jurisdiction, § 8 Periodicals and books, bibliography, § 61 Plaintiff's testimony in
17
case involving deputy chief of police, §§36–42 Planning for written discovery, § 27 Pleading
18
19 considerations, § 6 Police chief, case involving deputy chief of police, §§35–56 Power delegated
20 to police chief by city, § 46 Private employees, § 1 Privileges and immunity, defenses, §§3,5
21
Probable cause, constitutional requirements for cause of action, §§10,11,16,48 Problems in
22
evaluation, § 18 Production of documents, request, § 33 Proximate cause, constitutional
23
requirements for cause of action, §§10,11,16,48 Public concern matters, constitutional
24
25 requirements for cause of action, §§10,11,14,39,45 Punitive damages, §§4,22 Qualified immunity
26 defense, § 5 Reappointment of employee denied, §§50,55 Reason for adverse employee action
27
taken, absence of good reason, §§37,55 Reinstatement of employee, §§19,21 Remedies and relief,
28
- 10 -
924
1 §§3,4,8,19–24,42,60 Removal of case from state to federal court, § 7 Requests, model discovery,
2 §§31–33 Requests under freedom of information statutes, utility, § 28 Respondeat superior, § 4
3
Retired police division commander's testimony, §§51–56 Scope of article, § 2 Sovereign
4
immunity, § 3 Statutes of limitations, § 26 Strategic considerations, §§13,27–30 Suppression of
5
6
speech and legitimacy of interest therein, balance of interests test, §§10,11,15, 49,56 Supreme
7 Court decisions, § 10 Testimony, §§36–56 Tests, constitutional requirements for cause of action,
8 §§10–17,39,45,48,49,56 Truthfulness of criticisms and statements made, § 38 Utility of freedom

9
of information requests, § 28 Validity of criticisms and statements made, § 38 Who to depose, §
10
30 Witnesses, §§36–56 Written discovery, planning, § 27 I. Background A. Preliminary Matters §
11
1. Introduction [Cumulative Supplement] The doctrine of employment at will, permitting the
12
13 unfettered termination of employment at any time and for any reason, has been
14 under attack for years in both the public and private sectors. [1] While the main engines driving
15
the campaign are generally theories of contract [2] and tort, [3] a special niche exists in the area of
16
public employment over the so-called whistleblower— the employee at will who reveals some
17
unsavory fact about his employment or employer or speaks out on any subject deemed
18
19 inappropriate by his superiors and is then fired or disciplined in retaliation. [4] Here, when a
20 public employee is discharged, demoted, or otherwise subjected to an adverse personnel action in

21
retaliation for speaking out against his or her employer, an action to seek redress for the wrong
22
may be grounded upon the First Amendment to the Constitution of the United States. [5] The
23
premise advanced is that termination of employment as a consequence for the making of critical
24
25 comment, regardless of how motivated or directed, violates the individual's protected right of
26 freedom of speech, guaranteed by the First Amendment. [6] A profusion of litigation founded on
27
this premise has been pouring forth in federal courts and is beginning to spill into state courts.
28
- 11 -
925
1 This constitutional remedy is not generally available in the private sector. In the private sector, if
2 the whistleblower tries to seek redress for the action, a case must be founded upon other theories,
3
including statute or public policy. Several states have enacted specific statutes protecting the
4
whistleblower from a retaliatory discharge. [7] These statutes usually protect an employee who
5
6
reports activities attached to a specific subject, such as violations of environmental laws or
7 violations of health or safety regulations. [8] Litigants in the private sector may also rely upon the
8 public policy exception to the employment-at-will doctrine, arguing that it is against public policy
9
to discharge an employee for blowing the whistle on his employer. [9] However, the theories
10
available in the private sector do not offer the same protection as the First Amendment theories
11
available to the public employee. Nor do private employees have the remedies offered by Section
12
13 1983. [10] The constitutional implications of the First Amendment and the direct cause of action
14 for any infringement available through Section 1983 make the public employee's situation unique.
15
This article examines those circumstances. CUMULATIVE SUPPLEMENT Cases: Judicial
16
deference to state acting as employer: Constitutional review of state government's dealings with
17
citizen employees affords state greater leeway than constitutional review of state in its exercise of
18
19 regulatory or licensing power. Engquist v. Oregon Dept. of Agr., 128 S. Ct. 2146, 170 L. Ed. 2d
20 975, 27 I.E.R. Cas. (BNA) 1121, 91 Empl. Prac. Dec. (CCH) P 43213 (U.S. 2008); West's Key
21
Number Digest, States 53. On constitutional review of state government's dealings with citizen
22
employees, court balances employees' constitutional rights against realities of employment context
23
by considering whether asserted employee right implicates basic concerns of relevant
24
25 constitutional provision, or whether claimed right can more readily give way to requirements of
26 government as employer. Engquist v. Oregon Dept. of Agr., 128 S. Ct. 2146, 170 L. Ed. 2d 975,
27
27 I.E.R. Cas. (BNA) 1121, 91 Empl. Prac. Dec. (CCH) P 43213 (U.S. 2008); West's Key Number
28
- 12 -
926
1 Digest, States 53. If defendant's conduct satisfies state-action requirement of Fourteenth
2 Amendment, conduct also constitutes action "under color of state law" for § 1983 purposes.
3
U.S.C.A. Const.Amend. 14; 42 U.S.C.A. § 1983. Brentwood Academy v. Tennessee Secondary
4
School Athletic Ass'n, 531 U.S. 288, 121 S. Ct. 924, 148 L. Ed. 2d 807, 151 Ed. Law Rep. 18
5
6
(2001); West's Key Number Digest, Civil Rights 197. Hatch Act limits the political activities of
7 federal employees in the interests of promoting efficient, merit-based advancement, avoiding the
8 appearance of politically-driven justice, preventing the coercion of government workers to support

9
political positions, and foreclosing use of the civil service to build political machines. 5 U.S.C.A.
10
§§ 7321-7326. Burrus v. Vegliante, 336 F.3d 82, 172 L.R.R.M. (BNA) 3155, 148 Lab. Cas.
11
(CCH) ¶59777 (2d Cir. 2003); West's Key Number Digest, Elections 311.2(1). Expressive
12
13 conduct: Female county employee's act of wearing a skirt to work, although expressive, was not
14 type of "expressive conduct" required to invoke free speech clause in challenging county's
15
mandate that all public transportation employees wear pants to work; ordinary viewer would glean
16
no particularized message from employee's wearing of a skirt rather than pants as part of her
17
uniform. U.S.C.A. Const.Amend. 1. Zalewska v. County of Sullivan, New York, 316 F.3d 314, 90
18
19 Fair Empl. Prac. Cas. (BNA) 1193 (2d Cir. 2003); West's Key Number Digest, Constitutional Law
20 90.1(7.2). Public employees do not necessarily shed their First Amendment rights of speech and
21
political association in exchange for their jobs, but they often must make adjustment; that is to say,
22
public employees' exercise of certain First Amendment rights may legitimately be restrained
23
where it could lead to inability of elected officials to get their jobs done on behalf of public.
24
25 U.S.C.A. Const.Amend. 1. Gentry v. Lowndes County, Miss., 337 F.3d 481 (5th Cir. 2003);
26 West's Key Number Digest, Constitutional Law 91. Federal employee's claims that his First
27
Amendment rights were violated when he was fired in retaliation for his "whistleblowing"
28
- 13 -
927
1 activities are precluded by Civil Service Reform Act ( 5 USCA §§ 1 et seq.), including
2 Whistleblowing Protection Act of 1989 ( 5 USCA § 2302). Grisham v United States (1997, CA5
3
Tex) 103 F3d 24, 12 BNA IER Cas 763, 1997 CCH OSHD ¶31214. Adverse action: Involuntary
4
transfer of teacher to another school within school district had a sufficient chilling effect to qualify
5
6
as an "adverse action" under the First Amendment retaliation analysis. U.S.C.A. Const.Amend. 1.
7 Leary v. Daeschner, 349 F.3d 888, 182 Ed. Law Rep. 743, 20 I.E.R. Cas. (BNA) 1148, 2003 FED
8 App. 0409P (6th Cir. 2003); West's Key Number Digest, Constitutional Law 82(12). Wife's claim:
9
Police officer's wife lacked standing to assert First Amendment claim against police department
10
and city officials, based upon allegations that police presence at club where she was employed as
11
exotic dancer negatively impacted her working conditions and forced her to quit her job, and that
12
13 by discharging officer, defendants sought to chill wife's freedom of expression by removing
14 income from her home; wife failed to present evidence of any actual or inhibitory effect on her
15
freedom of speech, evidence of change in income was speculative, and any injury to her income
16
was not fairly traceable to defendants' conduct. U.S.C.A. Const.Amend. 1; 42 U.S.C.A. § 1983.
17
Eddings v. City of Hot Springs, Ark., 323 F.3d 596, 19 I.E.R. Cas. (BNA) 1350 (8th Cir. 2003);
18
19 West's Key Number Digest, Constitutional Law 42.2(1). Federal employees' compensation
20 restrictions: Under NTEU modification of Pickering balancing test, regulation prohibiting

21
compensation for teaching, speaking, or writing that related to federal employees' official duties
22
did not violate First Amendment free expression rights of Social Security Administration (SSA)
23
ALJ who was denied compensation for textbook he wrote on social security disability law and
24
25 practice; regulation was narrowly tailored to serve government's asserted interest in avoiding
26 employee impropriety or appearance of impropriety given that it expressly incorporated nexus

27
requirement between employee's speech and employee's official duties, regulation did not greatly
28
- 14 -
928
1 burden employee's right to speak, and restriction on compensation was not the type of speech
2 restriction that would promote government censorship based on employee's viewpoint. U.S.C.A.
3
Const.Amend. 1; 5 C.F.R. § 2635.807(a). Wolfe v. Barnhart, 446 F.3d 1096 (10th Cir. 2006);
4
West's Key Number Digest, Constitutional Law 90.1(7.2). Prior restraint: County's conditioning
5
6
police officer's return from suspension upon officer's refraining "at all times" from speaking to any
7 third parties about any employment matter "in any way critical or negative" toward any county
8 employee was overbroad prior restraint, since conditions could touch upon officer's protectable
9
private speech; county had to justify its actions as necessary to promote efficiency. U.S.C.A.
10
Const.Amend. 1. Mansoor v. County of Albemarle, 124 F. Supp. 2d 367 (W.D. Va. 2000); West's
11
Key Number Digest, Counties 67. A teacher's public criticism of his superiors on matters of public
12
13 concern may be constitutionally protected and may, therefore, be an impermissible basis for
14 termination of his employment. U.S.C.A. Const.Amend. 1. Leach v. New Mexico Junior College,
15
132 N.M. 106, 2002 -NMCA- 039, 45 P.3d 46, 164 Ed. Law Rep. 462 (Ct. App. 2002), cert.
16
denied, 132 N.M. 83, 44 P.3d 529 (2002) and cert. denied, 132 N.M. 83, 44 P.3d 529 (2002);
17
West's Key Number Digest, Constitutional Law 90.1(7.3). Some evidence supported finding that
18
19 there was causal link under Whistleblower Act between former county employee's report of
20 county equipment safety violations to county judge and uniformed officer of Department of Safety
21
and his termination approximately 60 days later; evidence that employee was terminated less than
22
90 days after violation report created presumption of retaliation, after employee made report to
23
judge, he was sent out by himself to do jobs that normally require two or three people to perform,
24
25 and after he reported to county commissioner that county property was missing, he was told to
26 keep his mouth shut and to mind his own business. Vernon's Ann.Texas Civ.St. art. 6252-16a, §
27
28
- 15 -
929
1 3(b). Upton County, Tex. v. Brown, 960 S.W.2d 808 (Tex. App. El Paso 1997), reh'g overruled,
2 (Oct. 8, 1997). [Top of Section] [END OF SUPPLEMENT] § 2. Scope of article [Cumulative
3
Supplement] This article examines the elements of proof required for an action based upon the
4
wrongful discharge or demotion of a public employee in retaliation for speech or comments
5
6
deemed offensive by the employer. The gravamen of the claim is infringement of the right of free
7 speech protected by the First Amendment to the Constitution of the United States, presented
8 through a direct action against the governmental agency under Section 1983 of the United States
9
Code, and filed in either state or federal court. [11] CUMULATIVE SUPPLEMENT Cases:
10
Material adverse employment action: Decrease in size of state university employee's office and
11
provision of antiquated telephone did not constitute material adverse employment actions
12
13 necessary to support employee's First Amendment retaliation claim against his supervisor.
14 U.S.C.A. Const.Amend. 1. Dennison v. Murray State University, 465 F. Supp. 2d 733 (W.D. Ky.
15
2006); West's Key Number Digest, Constitutional Law 82(11). [Top of Section] [END OF
16
SUPPLEMENT] B. Elements of Section 1983 § 3. In general [Cumulative Supplement] Although
17
deceptively simple in its construction, Section 1983 is full of procedural traps and pitfalls. A
18
19 complete analysis of the procedural intricacies of Section 1983 is beyond the scope of this article.
20 [12] However, an understanding of its basic framework is necessary to an understanding of the

21
topic. The statute was adopted by Congress in 1871 to enforce the Fourteenth Amendment. It
22
provides for private remedies in the form of money damages and injunctive relief for the
23
infringement of constitutional rights. In its relevant part, the statute reads: Every person who,
24
25 under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the
26 District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other
27
person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities
28
- 16 -
930
1 secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in
2 equity, or other proper proceeding for redress. [13] After laying almost dormant for ninety years, it
3
was resurrected to become the procedural keystone for the civil rights litigation of the 1960s. It
4
quickly became the engine for a plethora of litigation testing the limits of constitutional rights.
5
6
Private companies or private individuals are not ordinarily liable to an aggrieved party under
7 Section 1983; [14] such private parties are not acting "under color" of law. Individuals are liable
8 under the statute if they are acting under color of state law, which usually requires that the
9
individual be an employee or agent of the state. [15] Further, the statute does not extend to states
10
or state agencies; a state may not be a defendant in a Section 1983 action by virtue of the
11
sovereign immunity provisions of the Eleventh Amendment. [16] However, within government
12
13 and except for states themselves, the definition of person has been broadly interpreted to include
14 virtually any governmental entity, including cites, counties, townships, municipal corporations,
15
and the wide variety of local and regional government entities. [17] The statute provides for civil
16
redress in the form of injunctive relief and monetary damages against governmental entities or
17
individuals acting under color of law who violate the constitutional rights of anyone. [18] On the
18
19 one hand, this narrows the class of potential defendants considerably. On the other hand, it still
20 leaves a mighty big class. The procedural requirements for getting there are stiff, but the rewards
21
can be considerable when a target is isolated and within sight. CUMULATIVE SUPPLEMENT
22
Cases: University officials violated free speech rights of university professor when they reduced
23
his term as department chairman from three years to one as result of controversial speech made by
24
25 professor at off-campus symposium during which professor made several derogatory statements,
26 mostly about Jews. Jeffries v Harleston (1994, CA2 NY) 21 F3d 1238, 9 BNA IER Cas 686. One
27
cannot go into court and claim "violation of § 1983," for § 1983 by itself does not protect anyone
28
- 17 -
931
1 against anything rather, § 1983 provides remedy for violations of all rights, privileges, or
2 immunities secured by Constitution and laws of United States. 42 U.S.C.A. § 1983. Rural Water
3
System No. 1 v. City of Sioux Center, Iowa, 967 F. Supp. 1483 (N.D. Iowa 1997). [Top of
4
Section] [END OF SUPPLEMENT] § 4. Defendants in Section 1983 actions—Government
5
6
entities [Cumulative Supplement] When a governmental entity is named as the defendant, the
7 plaintiff must prove that the acts that constituted the constitutional infringement or violation were
8 carried out by the governmental entity as a matter of declared policy or established custom. [19] It
9
is not sufficient to merely prove that the acts were taken by an employee or agent of the entity in
10
the regular course of employment. In other words, respondeat superior is not sufficient. [20] In
11
addition, punitive damages are not available from a governmental agency. When individual
12
13 administrators or bureaucrats are named as defendants in their official capacity, the suit is treated
14 as one against the entity itself. As in the case of suit against the governmental entity, individuals
15
acting in their official capacity are immune from punitive damages and must be shown to have
16
acted pursuant to a declared policy or existing custom. In employment cases, the principle that the
17
agency action must be based upon declared policy or established custom seldom presents an
18
19 impediment. The requirement is satisfied when the governmental board or council either directs
20 the personnel action or ratifies the action taken by an individual administrator. Even where based
21
upon individual action, the requirement is satisfied if the individual taking the action is of
22
sufficient stature to be considered a policymaker and is implementing a decision he or she is
23
empowered to make. Where the governing board delegates authority to an individual administrator
24
25 to make personnel decisions, the delegation is generally sufficient to render the agency liable for
26 any action taken by the individual administrator, in accordance with the delegated authority. The
27
delegation of authority is sufficient to constitute the policy or established custom of the agency.
28
- 18 -
932
1 Since personnel actions in governmental agencies invariably require either direction from the
2 governing board before the act, ratification by the board after the act, or delegation of authority to
3
hire and fire to an administrator, this threshold requirement for action against the governmental
4
entity directly is usually a given. [21] However, there are exceptions. Case Illustration A former
5
6
city police officer, who had been fired for going to the attorney general with complaints about the
7 police chief, brought a civil rights action against the city, city manager, and police chief following
8 his termination. The court held that only the city manager had the final authority in personnel
9
matters, notwithstanding testimony that the chief had been given carte blanche to hire and fire.
10
Although the manager went along with the chief's decision, the court held that the manager was
11
not aware of the chief's wrong motivations. The court relied upon St. Louis v Praprotnik[22] for
12
13 the proposition that only those officials with the final policymaking authority may, by their
14 actions, subject the government to Section 1983 liability. Since the chief did not have the final say
15
and since the city manager was not fully informed when he went along, the actions did not
16
constitute a policy decision or act of established custom on the part of the city. The plaintiff
17
consequently lost his deep pocket and prevailed only in his action against the chief individually.
18
19 [23] Although the existence of the requisite governmental policy or custom is generally present in
20 employment cases, this does not mean that counsel can assume that it is present. The burden is on
21
the plaintiff to demonstrate every necessary element of the case, and if careless counsel overlooks
22
making a record with the necessary proof, the case may fly out the window on a technicality. It
23
may not take much to make the record, but it cannot be overlooked. CUMULATIVE
24
25 SUPPLEMENT Cases: City was liable in 42 USCA § 1983 action arising after forced retirement
26 of assistant fire chief in violation of his First Amendment rights, where city's Safety Director, City
27
Manager, and Civil Service Commission acted together to discipline assistant fire chief for
28
- 19 -
933
1 exercising his constitutional rights; contention that forced retirement was isolated incident and was
2 not pursuant to officially promulgated policy did not preclude liability, where decision was made
3
by city's authorized decisionmakers. Meyers v City of Cincinnati (1994, CA6 Ohio) 14 F3d 1115,
4
63 CCH EPD ¶42807, 1994 FED App. 15P. One incident of alleged retaliation against District of
5
6
Columbia employee for exercising her First Amendment rights did not qualify as a pervasive
7 policy or custom, as required to support municipal liability under § 1983. U.S.C.A. Const.Amend.
8 1; 42 U.S.C.A. § 1983. Tabb v. District of Columbia, 605 F. Supp. 2d 89 (D.D.C. 2009). [Top of
9
Section] [END OF SUPPLEMENT] § 5. Defendants in Section 1983 actions—Government
10
employees sued in individual capacity [Cumulative Supplement] Clearly under the statute, persons
11
may be named as defendants in their individual capacity. When bureaucrats are sued in their
12
13 individual (as opposed to official) capacity, there is no requirement to show that the constitutional
14 infringement was the result of a declared policy or established custom. In addition, individual
15
defendants may be subjected to punitive damages. However, individuals have available the
16
defense of qualified immunity. An individual administrator
17
or bureaucrat, acting in the ordinary course of employment, is immune from personal liability to a
18
19 plaintiff unless the illegality of the action was so obvious that a person of ordinary intelligence
20 would clearly understand that the actions violated the plaintiff's constitutional rights. [24] The
21
privilege is interpreted as a shield, creating a presumption of immunity for public officials acting
22
in their 1official capacity. [25] The burden of proof is on the plaintiff to demonstrate that the
23
privilege should not apply. A special circumstance is created where an individual defendant
24
25 asserts the privilege of qualified immunity in a motion for summary judgment and loses. [26] The
26 defendant may immediately appeal the decision, notwithstanding that a denial of a motion for
27
summary judgment would not otherwise be considered final or appealable [27] unless certified for
28
- 20 -
934
1 interlocutory appeal. [28] This special exception for an appeal of right was created by the Supreme
2 Court in 1985 [29] when the Court, recognizing that a question of immunity is separate from the
3
merits of the underlying action even though a reviewing court must consider factual allegations in
4
reviewing an immunity question, held that a district court's denial of a claim of qualified
5
6
immunity, to the extent that it turns on an issue of law, is appealable notwithstanding the absence
7 of a final judgment. [30] This means that when counsel insists on retaining an individual
8 defendant in an individual capacity, the case may well be looped through the appellate court
9
before the first round of discovery is launched. CUMULATIVE SUPPLEMENT Trial Strategy
10
Bivens Actions Against Law Enforcement Officers, 59 Am. Jur. Proof of Facts 3d 291 Cases:
11
Burden of overcoming qualified immunity: In order to overcome the defense of qualified
12
13 immunity in a § 1983 action for civil damages from a government official performing
14 discretionary functions, the plaintiff is required to show that the official violated clearly
15
established statutory or constitutional rights of which a reasonable person would have known. 42
16
U.S.C.A. § 1983. Conn v. Gabbert, 526 U.S. 286, 119 S. Ct. 1292, 143 L. Ed. 2d 399 (1999);
17
West's Key Number Digest, Civil Rights 214(2). Defendant's subjective intent: Defense of
18
19 qualified immunity may not be rebutted by evidence that governmental official's conduct was
20 malicious or otherwise improperly motivated; evidence concerning defendant's subjective intent is

21
simply irrelevant to qualified immunity defense, although it may be essential component of
22
plaintiff's affirmative case. Crawford- El v. Britton, 118 S. Ct. 1584 (U.S. 1998). County sheriff
23
was not entitled to qualified immunity for her conduct in rescinding jail officers' commissions as
24
25 deputy sheriffs, in officers' § 1983 First Amendment retaliation claim, alleging that sheriff
26 retaliated against them because of their political support of sheriff's opponent in election; the
27
rescission excluded officers' from the opportunity to work paid security details, so that their
28
- 21 -
935
1 earning capacity was reduced, it was well-settled at the time of sheriff's conduct that employer
2 could not impact employee's earning capacity on basis of employee's political affiliation, partisan
3
political loyalty was not a legitimate qualification for deputy sheriff's position, and sheriff could
4
not have reasonably believed that she had discretion to rescind commissions based on political
5
6
affiliation. U.S.C.A. Const.Amend. 1; 42 U.S.C.A. § 1983. Bergeron v. Cabral, 560 F.3d 1, 28
7 I.E.R. Cas. (BNA) 1455, 185 L.R.R.M. (BNA) 3308 (1st Cir. 2009). Commissioner of Public
8 Safety was not entitled to summary judgment on qualified immunity issue in 42 USCA § 1983
9
action arising after transfer of state trooper from his position as resident trooper without hearing,
10
based on his political activities involving tax expenditures and school construction in town in
11
which he resided, where reasonable public official would not have believed that state's interests
12
13 outweighed First Amendment interests of state trooper, and where there was no evidence that
14 trooper's conduct hampered efficient operation of law enforcement. Bieluch v Sullivan (1993,
15
CA2 Conn) 999 F2d 666. State official who revoked blind vendor's license to operate in capitol
16
building because of vendor's public statements which dealt with matters of personal and public
17
concern was not entitled to qualified immunity since any reasonable official would have to know
18
19 that revoking blind vendor's license in retaliation for such publicly-aired complaints violated First
20 Amendment. Copsey v Swearingen (1994, CA5 La) 36 F3d 1336. Summary judgment based on
21
qualified immunity was precluded in 42 USCA § 1983 action by teacher alleging superintendent
22
transferred teacher in retaliation for public criticism of superintendent's administration, where
23
uncontroverted circumstances surrounding transfer, including motivation of superintendent in
24
25 approving transfer, were sufficient to raise genuine issue of material fact as to whether transfer
26 was in violation of teacher's First Amendment rights. Tompkins v Vickers (1994, CA5 Miss) 26
27
F3d 603. To defeat claim of qualified immunity in § 1983 action, contours of right must be
28
- 22 -
936
1 sufficiently clear that reasonable official would understand that what he is doing violates that
2 right; official is not required to guess direction of future legal decisions, but must rely on
3
preexisting case law for guidance. 42 U.S.C.A. § 1983. Conrod v. Davis, 120 F.3d 92 (8th Cir.
4
1997). Supervisors were entitled to qualified immunity in 42 USCA § 1983 action by agency
5
6
employee who claimed his First Amendment rights were violated when he was discharged after he
7 criticized agency programs; employee's free speech rights were not clearly established, where
8 evidence showed employee's complaints affected morale of work force and functioning of entire
9
operation. Grantham v Trickey (1994, CA8 Mo) 21 F3d 289. The right of a school teacher to
10
claim that attendance records were inaccurate was not so clearly established that district officials
11
knew they were violating the law when they terminated him allegedly in retaliation for the
12
13 remarks, and the officials had qualified immunity from claims that their actions violated the
14 teacher's First Amendment rights; while the teacher's statements involved an area of public
15
concern, the statements disrupted harmony within the school's staff, the working relationship
16
between teachers and superintendents is close, and requires mutual trust of the sort disrupted by
17
the teacher's statements, the statements interfered with the teacher's discharge of his own duties,
18
19 the statements were directed to school officials, rather than the public, and the allegations were
20 ultimately proven false. U.S.C.A. Const.Amend. 1. Brewster v. Board of Educ. of Lynwood

21
Unified School Dist., 149 F.3d 971, 128 Ed. Law Rep. 50 (9th Cir. 1998). Shifting burden of
22
proof: In determining whether employee has sufficiently alleged that public employer violated
23
First Amendment right, for purposes of qualified immunity analysis in retaliation action, court
24
25 must first determine whether employee's speech involved matter of public concern, and then must
26 balance employee's interests in making statement against employer's interests in effective and
27
efficient fulfillment of its responsibilities; if balance tips in favor of employee, then he or she must
28
- 23 -
937
1 show protected speech was motivating factor in decision, and burden then shifts to employer to
2 show by preponderance of evidence that it would have reached same decision in absence of
3
protected activity. U.S.C.A. Const.Amend. 1. Butler v. City of Prairie Village, Kan., 172 F.3d 736
4
(10th Cir. 1999); West's Key Number Digest, Civil Rights 238. Where employee of sheriff's
5
6
department testified under subpoena in action brought by other employees of department charging
7 sheriff with racial and sexual discrimination, employee's speech dealt with matters of public
8 concern and was therefore protected by First Amendment since employee's testimony did not
9
constitute employee grievance motivated merely by selfinterest; further, since sheriff was warned
10
by judge not to retaliate against employee for her testimony, sheriff must have realized that
11
termination would constitute retaliation, and therefore sheriff was not entitled to qualified
12
13 immunity. Tindal v Montgomery County Comm'n (1994, CA11 Ala) 32 F3d 1535, 66 BNA FEP
14 Cas 36, 8 FLW Fed C 702. Free speech protections afforded to middle school music teacher's
15
speech against principal, especially his comments to local newspapers, were clearly established,
16
such that principal was not entitled to qualified immunity from teacher's § 1983 retaliation suit.
17
U.S.C.A. Const.Amend. 1; 42 U.S.C.A. § 1983. Valenti v. Torrington Bd. of Educ., 601 F. Supp.
18
19 2d 427 (D. Conn. 2009). First Amendment law was clearly established that school board members
20 could not retaliate against filing of lawsuit by school district employees or for employees' political
21
speech, and no reasonable government official in members' position could have believed that
22
retaliating against employees by taking adverse employment-related actions was appropriate
23
conduct, and thus members were not entitled to qualified immunity, in employees' § 1983
24
25 retaliation action. U.S.C.A. Const.Amend. 1; 42 U.S.C.A. § 1983. Pribula v. Wyoming Area
26 School Dist., 599 F. Supp. 2d 564 (M.D. Pa. 2009). Qualified immunity: Instructors at police
27
academy, who had provided expert testimony against police in excessive force case in another part
28
- 24 -
938
1 of state, sufficiently established deprivation of statutory right on part of police chiefs and sheriffs,
2 in process of refuting qualified immunity defense, by claiming that officials kept their personnel
3
away from instructors' classes, causing them to be relieved of teaching duties following their
4
testimony, in violation of statute prohibiting infliction
5
6
of injury in retaliation for testimony. 42 U.S.C.A. § 1985. Kinney v. Weaver, 111 F. Supp. 2d 831
7 (E.D. Tex. 2000); West's Key Number Digest, Civil Rights 214(6). County sheriff's qualified
8 immunity from deputy sheriff's § 1983 First Amendment retaliation claim protected him from
9
having to go to trial, not just from damages; deputy could not obtain any remedy from him.
10
U.S.C.A. Const.Amend. 1; 42 U.S.C.A. § 1983. Cockroft v. Moore, 638 F. Supp. 2d 1024 (W.D.
11
Wis. 2009). [Top of Section] [END OF SUPPLEMENT] § 6. Pleading considerations [Cumulative
12
13 Supplement] Many traps can befall a pleader who is not careful in the selection of defendants.
14 Since suing an individual in her official capacity is treated as a suit against the entity, it may be
15
redundant to name both the governmental entity and any of its administrators in their official
16
capacity. Unless there is some question over the legal identity of the named entity, or a question
17
over whether it can be sued in its own name, little is gained by adding the individual
18
19 administrators in their official capacity. Pleading practices vary from jurisdiction to jurisdiction.
20 [31] Where the practice is to sue the officials ex officio, it is unnecessary to separately name the
21
entity; where the practice is to sue the entity, it is redundant to name the officials ex officio. The
22
best case result in redundant pleading is a simple order to strike or dismiss the unnecessary parties.
23
The worst case result is a Rule 11 sanction against the draftsman. [32] Because of these traps,
24
25 caution should be exercised in selecting the defendants and in designating their capacity. Unless
26 counsel is satisfied that the constitutional infringement is obvious and that the individual actor was
27
knowledgeable and culpably vindictive—thus justifying the pursuit of punitive damages—little
28
- 25 -
939
1 more than additional hassle lies in the path of the plaintiff who names individual defendants with
2 abandon. These tactical considerations are important to the drafter of the complaint. The specific
3
facts are subject to scrutiny early in the lawsuit, and interlocutory appeals can be taken as a matter
4
of course to derail or delay the progress of the case. The courts are increasingly insisting that the
5
6
complaint clearly state specifically what theory of liability is being pursued against individual
7 defendants, and the specter of Rule 11 sanctions haunts the careless pleader. [33] CUMULATIVE
8 SUPPLEMENT Cases: A plaintiff suing a public official under § 1983 must file a complaint that
9
rests on more than conclusions alone; if a defendant raises the defense of qualified immunity, the
10
district court may order the plaintiff to file a reply tailored to answer the defendant's assertion of
11
qualified immunity, and, in cases involving an allegation of improper discriminatory motive, the
12
13 district court may sua sponte or on the defendant's motion order the plaintiff to put forward
14 specific, nonconclusory factual allegations that establish improper motive causing cognizable
15
injury in order to survive a prediscovery motion for dismissal or summary judgment. 42 U.S.C.A.
16
§ 1983; Fed R Civ P Rule 7; Shipp v. McMahon, 199 F.3d 256 (5th Cir. 2000); West's Key
17
Number Digest, Civil Rights 238. In order to state First Amendment claim against public
18
19 employer, public employee must show that (1) he or she engaged in constitutionally protected
20 speech, (2) employer took adverse employment action against employee, and (3) employee's
21
speech was a substantial or motivating factor for the adverse action. U.S.C.A. Const.Amend. 1.
22
Carey v. Maricopa County, 602 F. Supp. 2d 1132, 92 Empl. Prac. Dec. (CCH) P 43500, 157 Lab.
23
Cas. (CCH) P 60770 (D. Ariz. 2009). [Top of Section] [END OF SUPPLEMENT] § 7. Choice of
24
25 forum [Cumulative Supplement] Section 1983 actions may be maintained in either state or federal
26 district courts. Federal courts have original jurisdiction, [34] and actions may be filed in federal
27
courts without regard to diversity or amounts in controversy. State courts have concurrent
28
- 26 -
940
1 jurisdiction. When a Section 1983 action is filed in state court, the court is obligated to apply
2 federal law to the constitutional issues and to all procedural matters if following state law would
3
bar access to the courts. [35] If an action is commenced in state court, the defendant has the option
4
of removal to federal court. [36] The overwhelming number of pure Section 1983 actions have
5
6
been maintained in federal courts. Commentators suggest that this has been because of the
7 perception that federal judges are more receptive of and knowledgeable about constitutional
8 claims. For this reason, the great wealth of authority in this area will be found in federal cases.
9
However, commentators note a recent phenomena of burgeoning state court actions founded upon
10
Section 1983 that defendants are not removing. [37] Counsel should be aware of a growing body
11
of cases among the states. The choice of forum between state court and federal court belongs to
12
13 the plaintiff in the first instance. [38] If the plaintiff chooses a state court, the defense may remove
14 to federal court. [39] If timely made, the removal is automatic and nondiscretionary. There is no
15
provision to remove a case the other way (i.e., from federal court to state court). Once a case is in
16
federal court, whether by initial filing or removal, the federal court will remand back to state court
17
only if the basis for federal jurisdiction is lost or abandoned. This means that the plaintiff's counsel
18
19 must always be prepared to litigate in federal court when initiating suit under Section 1983,
20 whether started in federal court or not. CUMULATIVE SUPPLEMENT Cases: A Bivens action is
21
the federal analog to suits brought against state officials under § 1983. It provides victims of a
22
constitutional violation by a federal have a right to recover damages against the official in federal
23
court despite the absence of any statute conferring such a right. 42 U.S.C.A. § 1983. Hartman v.
24
25 Moore, 126 S. Ct. 1695, 164 L. Ed. 2d 441 (U.S. 2006); West's Key Number Digest, United States
26 50.1. [Top of Section] [END OF SUPPLEMENT] § 8. Pendent jurisdiction Actions founded upon
27
employment claims are frequently stated in alternative counts. A retaliatory termination that
28
- 27 -
941
1 allegedly violates a federal constitutional right may also violate a state statute, governmental
2 regulation, or the terms of an express or implied contract. Where such state law claims are
3
combined with a Section 1983 action filed in or removed to a federal court, the federal court will
4
retain jurisdiction of all claims under the doctrine of pendent jurisdiction. [40] The decision of
5
6
whether to include alternative counts with a Section 1983 action may involve the issue of
7 exhaustion of administrative remedies. Where a violation of constitutional rights has occurred, an
8 aggrieved employee need not exhaust administrative remedies before filing a Section 1983 action.
9
The employee may well be required to do so, however, before maintaining any companion state
10
law claims. [41] Unless the administrative remedies have been exhausted, or plaintiff is willing to
11
do so before proceeding with the Section 1983 action, it is a poor tactic to combine state law
12
13 claims with a claim under Section 1983. Either the action will be stayed until the administrative
14 remedies are exhausted, or the state claims and perhaps the entire action will be dismissed. § 9.
15
Jury trial vs. court trial If the action is primarily advanced for money damages, a jury trial is
16
available upon timely demand of either party. [42] If the action is primarily advanced for
17
injunctive or declaratory relief, the issues are to be determined by the court and neither side is
18
19 entitled to a jury. Where both remedies are included and either side demands a jury, the legal
20 damage claims must be tried first to a jury, with the equitable claims later resolved by the court. In
21
such an event, the court should be bound by the relevant jury findings on the facts in any later
22
determination on equitable issues. [43] C. Application To Employment Cases § 10. The Supreme
23
Court decisions [Cumulative Supplement] Once Section 1983 was rediscovered in the civil rights
24
25 area, its application was almost immediately extended into every area of constitutional inquiry.
26 The first case to connect a wrongful discharge claim to the constitutional right of free speech
27
through the vehicle of Section 1983, Pickering v Board of Education, was decided in 1968, when
28
- 28 -
942
1 the court held for the first time that a public employee could not be summarily discharged for
2 exercising the constitutionally protected right of free speech. [44] It was the first recognized
3
departure from prior rulings to the effect that public employees could be required to forego their
4
right of free speech as a condition of continued employment. The prior law was embodied in the
5
6
oft-quoted phrase of Justice Oliver Wendell Holmes, who as chief justice of the supreme court of
7 Massachusetts said, "He may have a constitutional right to talk politics, but he has no
8 constitutional right to be a policeman." [45] However, the court did not rule that the right of free
9
speech was absolute. Instead, it held that the court must balance the right of free speech against
10
the governmental employer's interest in maintaining the integrity and efficiency of the public
11
service entity. While this did not grant to public employees an absolute right of free speech, it
12
13 opened a door that had long been closed. [46] Over the next twenty years, five more cases reached
14 the United States Supreme Court, refining and filling out the principles started in Pickering. In
15
1972, the court ruled that the First Amendment protection was an exception to the employment-at-
16
will doctrine; an employee at will in the public sector cannot be terminated in retaliation for the
17
exercise of protected free speech. [47] In 1977, the court defined the proof
18
19 of causation required to sustain a wrongful termination action and ruled that an employer could
20 defend against an apparent retaliation case by demonstrating that the adverse personnel action
21
would have been taken anyway. [48] In 1979, the court ruled that private speech could be
22
protected as well as public comment. [49] In 1983, the court ruled that, in order to be protected
23
under the First Amendment, the subject of the challenged speech had to be a matter of public
24
25 concern, establishing a second prong to the test for determining the availability of constitutional
26 protection, overlaying the balancing requirement established in Pickering. [50] Finally, in 1987,
27
the court ruled that where the employee served no confidential, policymaking, or public contact
28
- 29 -
943
1 role, any impact upon the efficiency of the operation of the public entity from adverse speech
2 would probably be minimal and would require a substantial showing to overcome the employee's
3
right of free speech. [51] While the Supreme Court gradually recognized and refined the principles
4
involved, the court has in no sense declared an open season on employers. To the contrary, the
5
6
procedural hurdles that exist and the subjectivity of the tests to be applied present considerable
7 obstacles to any plaintiff considering the course of litigation. The court consistently comments that
8 while First Amendment rights are of significant importance, government employers should have
9
considerable discretion in personnel matters and that care must be taken to ensure that the specter
10
of First Amendment claims does not unduly interfere with the right of an employer to justly
11
discipline and manage its employees. "Government offices could not function if every
12
13 employment decision became a constitutional matter." [52] CUMULATIVE SUPPLEMENT
14 Cases: Government employee does not relinquish all First Amendment rights otherwise enjoyed
15
by citizens just by reason of his or her employment; on the other hand, governmental employer
16
may impose certain restraints on speech of its employees that would be unconstitutional if applied
17
to the general public. U.S.C.A. Const.Amend. 1. City of San Diego, Cal. v. Roe, 125 S. Ct. 521,
18
19 22 I.E.R. Cas. (BNA) 1 (U.S. 2004); West's Key Number Digest, Bankruptcy 82(11). Speaking as
20 citizen or as employee: In determining whether public employee's speech is protected by First

21
Amendment, speech is entitled to Pickering balancing only when employee speaks as citizen upon
22
matters of public concern rather than as employee upon matters only of personal interest. U.S.C.A.
23
Const.Amend. 1. City of San Diego, Cal. v. Roe, 125 S. Ct. 521, 22 I.E.R. Cas. (BNA) 1 (U.S.
24
25 2004); West's Key Number Digest, Bankruptcy 90.1(7.2). Courts must examine content, form, and
26 context of given statement, as revealed by the whole record, in assessing whether public
27
employee's speech addresses "matter of public concern" for First Amendment purposes. U.S.C.A.
28
- 30 -
944
1 Const.Amend. 1. City of San Diego, Cal. v. Roe, 125 S. Ct. 521, 22 I.E.R. Cas. (BNA) 1 (U.S.
2 2004); West's Key Number Digest, Bankruptcy 90.1(7.2). Porn star police officer: Off-duty
3
activities of police officer, who videotaped himself stripping off generic police uniform and
4
engaging in acts of masturbation and who offered home-made videos for sale on online auction
5
6
site, fell outside First Amendment protection afforded by NTEU line of cases for speech unrelated
7 to employment and having no effect on mission and purpose of employer; although officer's
8 activities took place outside the workplace and purported to be about subjects not related to his
9
employment, police department demonstrated legitimate and substantial interests of its own that
10
were compromised by officer's speech. U.S.C.A. Const.Amend. 1. City of San Diego, Cal. v. Roe,
11
125 S. Ct. 521, 22 I.E.R. Cas. (BNA) 1 (U.S. 2004); West's Key Number Digest, Bankruptcy
12
13 90.1(7.2). "Public concern": Standard for determining whether government employee's expression
14 is of "public concern" for First Amendment purposes is same standard used to determine whether
15
common law action for invasion of privacy is present; "public concern" is something that is
16
subject of legitimate news interest, i.e., subject of general interest and of value and concern to
17
public at time of publication. U.S.C.A. Const.Amend. 1. City of San Diego, Cal. v. Roe, 125 S. Ct.
18
19 521, 22 I.E.R. Cas. (BNA) 1 (U.S. 2004); West's Key Number Digest, Bankruptcy 90.1(7.2). In
20 determining validity, under First Amendment, of restraint on job-related speech of public

21
employees, court must arrive at balance between (1) interests of employee, as citizen, in
22
commenting upon matter of public concern, and (2) interest of state, as employer, in promoting
23
efficiency of public services that state performs through its employees. United States v National
24
25 Treasury Employees Union (1995, US) 130 L Ed 2d 964, 115 S Ct 1003, 95 CDOS 1300, 95
26 Daily Journal DAR 2307, 10 BNA IER Cas 452, 8 FLW Fed S 590, later proceeding United States
27
v National Treasury Employees Union (1995, US) 131 L Ed 2d 193, 115 S Ct 1310. A
28
- 31 -
945
1 government employer violates the Federal Constitution's First Amendment where (1) an employee
2 engages in speech that is protected under the First Amendment; and (2) the employer, holding an
3
erroneous and unreasonable belief about what the employee said, disciplines the employee based
4
on the employee's speech. Waters v Churchill (1994, US) 128 L Ed 2d 686, 114 S Ct 1878, 94
5
6
CDOS 3850, 94 Daily Journal DAR 7224, 9 BNA IER Cas 801, 8 FLW Fed S 163, motion den
7 (US) 130 L Ed 2d 10, 115 S Ct 49. [Top of Section] [END OF SUPPLEMENT] § 11.
8 Constitutional requirements for the cause of action [Cumulative Supplement] As a result of these
9
cases, the essential elements of a wrongful termination or wrongful demotion case founded on the
10
First Amendment have been boiled down to three tests: Matter of public concern The first test is
11
the threshold determination. Does the speech involve a matter of public concern? The evaluation
12
13 is based upon the content, form, and context of the given statement as revealed by the entire
14 record. If the answer

15
Indeed, NRCP RULE 5. SERVICE AND FILING OF PLEADINGS AND OTHER
16
PAPERS requires that:
17
“(a) Service: When Required. Except as otherwise provided in these rules, every
18
order required by its terms to be served,... (b)(2) Service under this rule is made by:
19 (A) Delivering a copy to the attorney or the party by: (i) handing it to the attorney or
to the party; (ii) leaving it at the attorney’s or party’s office with a clerk or other
20 person in charge, or if there is no one in charge, leaving it in a conspicuous place in
the office; or (iii) if the office is closed or the person to be served has no office,
21
leaving it at the person’s dwelling house or usual place of abode with some person of
22 suitable age and discretion residing thing a copy by electronic means if the attorney
or the party served has consented to service by electronic means... The served
23 attorney’s or party’s consent to service by electronic means shall be expressly stated
and filed in writing with the clerk of the court and served on the other parties to the
24
action. The written consent shall identify: (i) the persons upon whom service must be
25 made; (ii) the appropriate address or location for such service, such as the electronic-
mail address or facsimile number; (iii) the format to be used for attachments; and (iv)
26 any other limits on the scope or duration of the consent. An attorney’s or party’s
consent shall remain effective until expressly revoked or until the representation of a
27
party changes through entry, withdrawal, or substitution of counsel. An attorney or
28 party who has consented to service by electronic means shall, within 10 days after any
- 32 -
946
1 change of electronic-mail address or facsimile number, serve and file notice of the
new electronic-mail address or facsimile number. (3) Service by electronic means
2 under Rule 5(b)(2)(D) is not effective if the party making service learns that the
3
attempted service did not reach the person to be served. (4) Proof of service may be
made by certificate of an attorney or of the attorney’s employee, or by written
4 admission, or by affidavit, or other proof satisfactory to the court. Failure to make
proof of service shall not affect the validity of service.
5 NRCP 59(e): (e) Motion to Alter or Amend a Judgment. A motion to alter or amend the
6
judgment shallbe filed no later than 10 days after service of written notice of entry of the judgment.”
7
RTolling Effect of Some Post-Judgment Motions Just because post-judgment motions have been
8
9
filed does not mean that the time to appeal the principal judgment is automatically tolled. Rather,
10 only some post-judgment motions have a tolling effect and other motions, which are not
11 independently tolling, have a tolling effect only when combined with other pending tolling motions.
12
For the most part, however, the only tolling motions are the four listed in NRAP 4(a)(4). Motion for
13
Reconsideration/Rehearing A motion for reconsideration/rehearing filed under the authority of
14
EDCR 2.24, or other similar local rules, must be filed within 10 days after service of the notice of the
15
16 order or judgment.
17
It was reversible error in the underlying matter where the Court: refused to grant a
18
19 continuance of the November 30th, 2011 Trial, failed to provide the Sixth Amendments guarantee of
20 a Right to Counsel both in the petit theft Trial and once even the specter of a Summary Contempt
21
22
would nail the undersigned with contempt for attempting to zealously advocate on his own behalf.
23
Further, refusing to allow inquiry into the stated retaliatory motives of Wal-Mart and its Asset
24
25 Protection division, especially vis a vis, Wal-Mart's established practice, even by its managers, of
26 outright lying the the public repeatedly about the terms and effect of the posted Return Policy
27
28
- 33 -
947
1 perjury, failing to turn over discovery in a timely manner, lying about whether the Reno City
3
prosecutions improper motive in this retaliatory prosecution stems from a desire to undermine the
4
5
6
7 advance of the arrest in this matter. Further improprieties and due process deficiencies in the Reno
9
Entry of Order here from the RMC is likely required given the Order was complete outside the
10
11
12
13 charged: “(a) Intentionally steals, takes and carries away, leads away or drives away...” Each of the
15
appeared on both receipts and whether the undersigned provided his driver's license to the RSIC
16
Officers, which the video showed he did, and therefore, the probable cause to conduct a search
17
incident to a custodial arrest is vitiated and perjury apparent by all three witnesses and misconduct
18
19 by the Reno City Attorney. All arguments made below, whether at Trial or in the papers on file or
20 otherwise submitted to the RMC are hereby incorporated by reference.

21
RMC Sec. 8.10.040. - Petit larceny: It is unlawful for any person to take or carry away the
22
property of another with the intent to deprive the owner of his property therein, in any value less than
23
$250.00, and for his conviction therefor, he shall be fined in an amount not more than $1,000.00
24
25 and/or be incarcerated not more than six months. In addition to any other penalty, the court shall
26 order the person to pay restitution.” (Code 1966, § 11.12.003; Ord. No. 2762, § 1, 8-13-79; Ord. No.
27
3866, § 1, 9-25-89; Ord. No. 4815, § 1, 10-28-97; Ord. No. 5058, § 1, 11-12-99) State law reference
28
- 34 -
948
1 — Petit larceny, NRS 205.240. NRS 205.240 Petit larceny; penalty. 1. Except as otherwise
2 provided in NRS 205.220, 205.226, 205.228 and 475.105, a person commits petit larceny if the
3
person: (a) Intentionally steals, takes and carries away, leads away or drives away: (1)
4
Personal goods or property, with a value of less than $650, owned by another person; (2)
5
6
Bedding, furniture or other property, with a value of less than $650, which the person, as a lodger, is
7 to use in or with his or her lodging and which is owned by another person; or (3) Real
8 property, with a value of less than $650, that the person has converted into personal property by
9
severing it from real property owned by another person. (b) Intentionally steals, takes and carries
10
away, leads away, drives away or entices away one or more domesticated animals or domesticated
11
birds, with an aggregate value of less than $650, owned by another person. 2. Unless a greater
12
13 penalty is provided pursuant to NRS 205.267, a person who commits petit larceny is guilty of a
14 misdemeanor. In addition to any other penalty, the court shall order the person to pay restitution.
15
[1911 C&P § 374; A 1947, 85; 1949, 127; 1943 NCL § 10324]—(NRS A 1965, 300, 1007; 1967,
16
500; 1969, 531; 1983, 547; 1985, 751; 1989, 1434; 1995, 13; 1997, 342, 1114; 1999, 3109; 2009,
17
1243; 2011, 165) NRS 205.251 Determination of value of property involved in larceny offense.
18
19 For the purposes of NRS 205.2175 to 205.2707, inclusive: 1. The value of property involved in a
20 larceny offense shall be deemed to be the highest value attributable to the property by any reasonable
21
standard. 2. The value of property involved in larceny offenses committed by one or more
22
persons pursuant to a scheme or continuing course of conduct may be aggregated in determining the
23
grade of the larceny offenses. Grant v. State, 24 P.3d 761 234 LARCENY 234II Prosecution and
24
25 Punishment 234II(B) Evidence 234 54 Weight and Sufficiency 234k57 k. Intent. Nev.,2001
26 Requisite finding of intent to permanently deprive owner of property was supported in grand larceny
27
prosecution by evidence that defendant was seen tucking casino patron's purse into his jacket several
28
- 35 -
949
1 times and heading towards lobby and exit of casino. N.R.S. 205.220 , subd. 1, 205.222, subds. 2, 3.
2 Hogan v. State, 536 P.2d 1028 Nev.,1975 There was sufficient evidence of felonious asportations of
3
air conditioner from fenced compound at rear of store to support convictions for grand larceny
4
notwithstanding defendants' assertions that they found the air conditioner outside the fence and
5
6
believed it was abandoned. N.R.S. 205.220 . State v. Phipps, 282 P. 1024 Nev.,1929 Evidence in
7 prosecution for larceny of mining property held not to show codefendant's intent to take, steal, or
8 carry away personal property. State v. Ward, 10 P. 133 Nev.,1886 The facts that defendant took a
9
horse from the premises of its owner without his knowledge, and rode it for a certain distance, and
10
then abandoned it, after removing and concealing the saddle and blanket, are sufficient to justify a
11
finding of intent permanently to deprive the owner of his property, although defendant testifies that
12
13 he had engaged another to take it back, and when he did not appear he expected some one to take it
14 back, or that the animal would stray back. NRS 205.0824 “Deprive” defined. “Deprive” means
15
to withhold a property interest of another person permanently or for so long a time that a substantial
16
portion of its value, usefulness or enjoyment is lost, or to withhold it with the intent to restore it only
17
upon the payment of a reward or other compensation, or to transfer or dispose of it so that it is
18
19 unlikely to be recovered. NRS 205.0832 Actions which constitute theft. 1. Except as otherwise
20 provided in subsection 2, a person commits theft if, without lawful authority, the person knowingly:
21
(a) Controls any property of another person with the intent to deprive that person of the property.
22
(b) Converts, makes an unauthorized transfer of an interest in, or without authorization controls
23
any property of another person, or uses the services or property of another person entrusted to him or
24
25 her or placed in his or her possession for a limited, authorized period of determined or prescribed
26 duration or for a limited use. (c) Obtains real, personal or intangible property or the services of
27
another person by a material misrepresentation with intent to deprive that person of the property or
28
- 36 -
950
1 services. As used in this paragraph, “material misrepresentation” means the use of any pretense, or
2 the making of any promise, representation or statement of present, past or future fact which is
3
fraudulent and which, when used or made, is instrumental in causing the wrongful control or transfer
4
of property or services. The pretense may be verbal or it may be a physical act. (d) Comes into
5
6
control of lost, mislaid or misdelivered property of another person under circumstances providing
7 means of inquiry as to the true owner and appropriates that property to his or her own use or that of
8 another person without reasonable efforts to notify the true owner. (e) Controls property of
9
another person knowing or having reason to know that the property was stolen. (f) Obtains
10
services or parts, products or other items related to such services which the person knows are
11
available only for compensation without paying or agreeing to pay compensation or diverts the
12
13 services of another person to his or her own benefit or that of another person without lawful
14 authority to do so. (g) Takes, destroys, conceals or disposes of property in which another person
15
has a security interest, with intent to defraud that person. (h) Commits any act that is declared to
16
be theft by a specific statute. (i) Draws or passes a check, and in exchange obtains property or
17
services, if the person knows that the check will not be paid when presented. (j) Obtains gasoline
18
19 or other fuel or automotive products which are available only for compensation without paying or
20 agreeing to pay compensation. 2. A person who commits an act that is prohibited by subsection 1
21
which involves the repair of a vehicle has not committed theft unless, before the repair was made,
22
the person received a written estimate of the cost of the repair. Its was reversible error where Judge
23
Howard Did not comply with the above and the burden of proof was not met in consieration fo the
24
25 evidence offered. Further, Appellant was refused his opportunity to testify or put on evidence, City
26 of Reno suborned perjury, ect, etc. Intent was missing too, and, assumign the accusations are true,
27
anyone consuming that many of those cough drops would not be capable of forming the requisite
28
- 37 -
951
1 intent. Driver's license was offered, therefore reversible error to allow basing the search on failure to
2 provide driver's license or sufficent indentifying information to issue a citation. Fruit of poison tree.
3
Judgment 294 to 335.
4
New Trial 13 to 168.
5
6
Westlaw Topic Nos. 228, 275.
7 C.J.S. Judgments §§ 275 to 280, 282 to 304, 331 to 335, 345, 347, 350, 360 to 362, 370 to
8 374, 408 to 414, 421, 434 to 435, 437, 442 to 447, 452, 457, 473, 475, 483 to 495.
9
C.J.S. New Trial §§ 17 to 164, 167 to 290.
10
NOTES OF DECISIONS
11
Affidavits 29
12
13 Agreements and stipulations 12
14 Amendments to rule 2
15
Appealable orders, review 33
16
Cautious application 4
17
Conflict of laws 3
18
19 Construction and application 1
20 Discretion of trial court 21

21
Disposition, review 37
22
Evidence, jury misconduct 8
23
Inconsistency of verdict 16
24
25 Irregularity in proceedings 14
26 Jury misconduct 6-8

27
Jury misconduct - In general 6
28
- 38 -
952
1 Jury misconduct - Evidence 8
2 Jury misconduct - Manifest disregard of instructions 7
3
Manifest disregard of instructions, jury misconduct 7
4
Misconduct of counsel 10
5
6
Misconduct of parties 9
7 Misconduct of witnesses 11
8 Motion for new trial 26-28

9
Motion for new trial - In general 26
10
Motion for new trial - Time for motion for new trial 27
11
Motion for new trial - Waiver of notice 28
12
13 Motion to alter or amend judgment 23-25
14 Motion to alter or amend judgment - In general 23

15
Motion to alter or amend judgment - Service of notice 25
16
Motion to alter or amend judgment - Time for motion to alter or amend judgment 24
17
Nature and scope of remedy 5
18
19 Newly discovered evidence 22
20 Notice of motion for appeal, review 35

21
Nunc pro tunc orders 44
22
Order granting or refusing new trial 30
23
Plain error 20
24
25 Preservation of issue for review or motion 28.5
26 Review 32-37
27
Review - In general 32
28
- 39 -
953
1 Review - Appealable orders 33
2 Review - Disposition 37
3
Review - Notice of motion for appeal 35
4
Review - Scope of review 36
5
6
Review - Timeliness of application 34
7 Scope of new trial grant 31
8 Scope of review 36
9
Service of notice, motion to alter or amend judgment 25
10
Surprise 13
11
Time for motion for new trial 27
12
13 Time for motion to alter or amend judgment 24
14 Timeliness of application, review 34

15
Verdict contrary to evidence 17
16
Verdict contrary to law 18
17
Verdict effected by passion or prejudice, generally 19
18
19 Verdict form 15
20 Waiver of notice, motion for new trial 28

21
1. Construction and application
22
Comp. Laws, § 3163, permitting the court, in furtherance of justice, upon just terms, to relieve
23
a party from a judgment, order or other proceeding taken against him through mistake, inadvertence,
24
25 surprise, or excusable neglect, should be very liberally construed in furtherance of
26 its purpose. Whise v. Whise, 1913, 131 P. 967, 36 Nev. 16. Judgment 337
27
2. Amendments to rule
28
- 40 -
954
1 The purpose of amendment of rule of civil procedure to eliminate as a ground for a new trial
2 “insufficiency of the evidence to justify the verdict” is to preclude a trial court from substituting
3
its view of the evidence for that of a jury in a case where the losing party is not entitled to
4
judgment as a matter of law. NRCP 59. Fox v. Cusick, 1975, 533 P.2d 466, 91 Nev. 218. New
5
6
Trial 70
7 3. Conflict of laws
8 Rule governing motion to amend judgment did not necessarily relate to same subject as and
9
was not in conflict with statute governing motion to retax and to settle costs, and, thus, allegedly
10
more specific statute governing motion to retax costs did not control physician's challenge
11
to judgment of $54,958.24, which was entered upon offer of judgment of $50,000, including
12
13 costs in amount of $4,958.24. Rules Civ.Proc., Rule 59(e); N.R.S. 18.110, subd. 4.
14 Fleischer v. August, 1987, 737 P.2d 518, 103 Nev. 242. Judgment 90
15
4. Cautious application
16
Even before rule of civil procedure relating to new trial was amended so as to eliminate as a
17
ground for new trial “insufficiency of the evidence to justify the verdict,” the trial court was
18
19 obliged to use great caution in the exercise of its power to set aside a jury verdict upon that
20 ground. NRCP 59. Fox v. Cusick, 1975, 533 P.2d 466, 91 Nev. 218. New Trial 70
21
5. Nature and scope of remedy
22
Appellant's contention that evidence failed to support judgment would not be considered
23
where appellant had made no motion for a directed verdict, for judgment notwithstanding the
24
25 verdict, or for new trial. NRCP 50(a, b), 59(a). Bill Stremmel Motors, Inc. v. Kerns, 1975, 531
26 P.2d 1357, 91 Nev. 110. Appeal And Error 237(5); Appeal And Error 238(2); Appeal
27
And Error 294(1)
28
- 41 -
955
1 Except in conformity with established procedures, lower court was without jurisdiction to alter
2 judgment dismissing a quiet title action without prejudice, and its order purporting to do so
3
was void. NRCP 59(e), 60(b)(3); District Court Rules, rule 20, subd. 4. Dredge Corp. v. Peccole,
4
1973, 505 P.2d 290, 89 Nev. 26. Quieting Title 45
5
6
Rule providing that where issues have been litigated and resolved, motion may be made to alter
7 or amend judgment may not be utilized to vacate default judgment. NRCP 59(e), 60(b).
8 Chiara v. Belaustegui, 1970, 477 P.2d 857, 86 Nev. 856. Judgment 135
9
Facts occurring subsequent to trial cannot be considered with view to granting new trial or reversing
10
judgment of trial court. Fox v. First Western Sav. & Loan Ass'n, 1970, 470 P.2d 424,
11
86 Nev. 469. Appeal And Error 837(9); New Trial 100
12
13 Allegation that testimony of witness would show that judgment was clearly erroneous does
14 not warrant disregard of requirement that reasonable diligence for failure to produce witness
15
at trial be shown or authorize granting of new trial. NRCP 59(a). Snow v. Pioneer Title Ins.
16
Co., 1968, 444 P.2d 125, 84 Nev. 480. New Trial 124(1)
17
6. Jury misconduct--In general
18
19 In absence of a showing of plain error or a showing of manifest injustice, insufficiency of the
20 evidence to support the verdict is no longer a basis for motion for new trial on issue of damages
21
based upon ground of manifest disregard by jury of instructions of court. NRCP 59(a),
22
(a)(5). Eikelberger v. Tolotti, 1978, 574 P.2d 277, 94 Nev. 58. New Trial 66
23
7. ---- Manifest disregard of instructions, jury misconduct
24
25 Jury's verdict in slip and fall case, arising from fall in dining room near buffet line, was consistent
26 with jury instructions, and therefore new trial was not mandated despite owner's con-
27
tention that jury disregarded instructions on liability for presence of foreign substance on
28
- 42 -
956
1 floor, actual and constructive notice, and establishment of negligence by subjective evidence.
2 Rules Civ.Proc., Rule 59(a)(5). Paul v. Imperial Palace, Inc., 1995, 908 P.2d 226, 111 Nev.
3
1544. New Trial 72(9)
4
New trial may be granted when jury manifestly disregards court's instructions. Carlson v. Locatelli,
5
6
1993, 849 P.2d 313, 109 Nev. 257. New Trial 66
7 Jury did not manifestly disregard instruction concerning contributory negligence, even though
8 jury left blank the special verdict form; evidence indicated that jury had simply filled in general
9
verdict form after making necessary reductions based upon its comparative negligence
10
findings. Carlson v. Locatelli, 1993, 849 P.2d 313, 109 Nev. 257. Trial 356(1)
11
District court may grant new trial if it finds that jury has shown manifest disregard for instructions
12
13 of court. Rules Civ.Proc., Rule 59(a)(5). M & R Inv. Co., Inc. v. Mandarino, 1987, 748
14 P.2d 488, 103 Nev. 711. New Trial 44(1)

15
If jury had correctly applied law in medical malpractice action, it would have been impossible
16
for them to reach verdict in favor of doctor who was general practitioner, where only two expert
17
witnesses, who were vascular surgeons, testified that doctor did not comply with standard
18
19 of care required of general practitioner and that leg could have been salvaged if patient had received
20 proper care on her visit to doctor, and doctor presented no evidence to contradict testimony
21
of experts regarding appropriate standard of care, nor did she give opinion as to whether
22
her conduct violated standard of care, even though she testified that her diagnosis was based
23
on her knowledge of the history and physical appearance of patient's leg; thus, trial court did
24
25 not err in ordering new trial based upon jury's manifest disregard of instructions. Rules
26 Civ.Proc., Rule 59(a)(5). Rees v. Roderiques, 1985, 701 P.2d 1017, 101 Nev. 302. Evidence
27
571(3); New Trial 72(9)
28
- 43 -
957
1 In action by tenant against seller and installer of light fixture arising after fixture fell from
2 apartment's ceiling, striking tenant on the head, evidence that fixture may have fallen due to
3
stripped threads on end of pipe, causing it to be insecurely fastened, permitted finding, under
4
instructions given, that neither seller nor installer was liable; thus, new trial was not required,
5
6
following verdict for defendants, or theory that jury manifestly disregarded instructions. Rules
7 Civ.Proc., Rule 59(a), (a)(5). Town & Country Elec. Co., Inc. v. Hawke, 1984, 692 P.2d 490,
8 100 Nev. 701. New Trial 66

9
In action to recover damages for alleged breach of construction contract, district court erred
10
by granting new trial on ground that jury had disregarded its instructions regarding prevention
11
of performance, where jury may well have found that plaintiff's failure to file financial statement
12
13 was minor breach which did not prevent or affect defendant's ability to perform because
14 it was ignored by parties, and jury may have further concluded that defendant's failure to su-
15
pervise subcontractor properly was breach of sufficient magnitude to warrant his dismissal
16
and termination of contract. Rules Civ.Proc., Rule 59(a)(5). Weaver Bros., Ltd. v. Misskelley,
17
1982, 645 P.2d 438, 98 Nev. 232. New Trial 66
18
19 In determining propriety of granting of new trial for reason of “[m]anifest disregard by the
20 jury of the instructions of the court,” question is whether court is able to declare that had jurors
21
properly applied instructions of court, it would have been impossible for them to reach
22
verdict which they reached. Rules Civ.Proc., Rule 59(a)(5). Weaver Bros., Ltd. v. Misskelley,
23
1982, 645 P.2d 438, 98 Nev. 232. New Trial 66
24
25 The trial court is obligated to grant a new trial if the jurors could not have reached the verdict
26 that they reached if they had properly applied the court's instruction on proximate cause. NRCP
27
59(a)(5). Taylor v. Silva, 1980, 615 P.2d 970, 96 Nev. 738. New Trial 66
28
- 44 -
958
1 Where injured automobile driver argued at trial that earthmovers were negligent in failing to
2 signal a turn and in failing to equip the earthmover with turn signals and a rearview mirror as
3
well as in omitting to look before turning and where driver who was following earthmover
4
would have been forewarned that earthmover was going to turn right if earthmover had
5
6
signaled or if there had been an escort car and driver of earthmover would have noticed automobile's
7 presence if he had looked and it appeared that failure to take such precautions was
8 substantial factor in bringing about accident in which earthmover hit front left fender of automobile
9
injuring driver, jury could not have found that earthmover was negligent but that the
10
negligence was not the proximate cause of the driver's injuries if the jury had correctly applied
11
the law and therefore, a new trial was required. NRCP 59(a)(5). Taylor v. Silva, 1980, 615
12
13 P.2d 970, 96 Nev. 738. Appeal And Error 1177(2)
14 Where jury rendered a verdict for plaintiff but although properly instructed as to measure of
15
damages, failed to award plaintiff any medical costs other than the emergency room charges
16
and there was unrefuted evidence that plaintiff suffered injuries for which he incurred further
17
medical bills, the case was a proper one for a new trial; however, due to interrelationship of liability
18
19 and damage issues the case was not a proper one for a new trial limited to damages or
20 mere additur, and trial court had power to grant a new trial on all issues, notwithstanding that
21
plaintiff's motion requested only additur or a new trial limited to damages issued. NRCP 59
22
(a)(5). Shere v. Davis, 1979, 596 P.2d 499, 95 Nev. 491. New Trial 9; New Trial 74
23
Party moving for new trial on issue of damages based on ground of manifest disregard by jury
24
25 of instructions of court must show that had jurors properly applied instructions of court it
26 would have been impossible for them to reach verdict which they reached. NRCP 59(a),
27
(a)(5). Eikelberger v. Tolotti, 1978, 574 P.2d 277, 94 Nev. 58. New Trial 66
28
- 45 -
959
1 8. ---- Evidence, jury misconduct
2 Juror affidavits are inadmissible to show jurors misunderstood judge's instructions. ACP Reno
3
Associates v. Airmotive and Villanova, Inc., 1993, 849 P.2d 277, 109 Nev. 314. New Trial
4
143(4)
5
6
9. Misconduct of parties
7 New trial based upon prevailing party's misconduct does not require proof that result would
8 have been different in first trial without such misconduct. Rules Civ.Proc., Rule 59(a)(2). Barrett
9
v. Baird, 1995, 908 P.2d 689, 111 Nev. 1496. New Trial 28
10
10. Misconduct of counsel
11
Any violation of by automobile manufacturer's attorney, in products liability and negligence
12
13 action brought by passenger injured in a single-car rollover against manufacturer and driver,
14 of order in limine regarding seatbelt evidence and the use of such evidence, when manufacturer's
15
attorney in closing argument asserted that passenger's arguments regarding the alleged
16
failure of passenger's seatbelt and automobile's B-pillar were red hearings because passenger
17
was not belted, did not constitute misconduct warranting a new trial on a subsequent Lioce
18
19 motion, where the trial court sustained passenger's objection to the assertion and directed
20 manufacturer's attorney to clarify it, assertion went to causation, and jury concluded that automobile
21
was not defective and never reached causation issue. Bayerische Motoren Werke Aktiengesellschaft
22
v. Roth, 2011, 252 P.3d 649. New Trial 29
23
Order in limine, in products liability and negligence action brought by passenger injured in a
24
25 single-car rollover against automobile manufacturer and driver, was not definite and specific
26 regarding the use of seatbelt evidence, as required in order for remarks made by manufacturer's
27
attorney during opening statement, that passenger was ejected because she was not
28
- 46 -
960
1 wearing her seatbelt, that if she had not been ejected she would not have suffered a spinal cord
2 injury, and that driver was wearing her seatbelt and was not ejected, to constitute attorney
3
misconduct warranting a new trial on a subsequent Lioce motion; order allowed introduction
4
of seatbelt evidence, and limitation that the evidence could only be considered when evaluating
5
6
whether automobile was defective and unreasonably dangerous was not specific enough to
7 make a subsequent violation clear. Bayerische Motoren Werke Aktiengesellschaft v. Roth,
8 2011, 252 P.3d 649. New Trial 29

9
Short factual description of the case offered during voir dire by attorney representing automobile
10
manufacturer, that the passenger claimed she was seatbelted while the physical evidence
11
would show that passenger was not wearing her seatbelt, did not violate order in limine
12
13 regarding seatbelt evidence and the use of such evidence, in products liability and negligence
14 action brought by passenger injured in single-car rollover against manufacturer and driver,
15
and thus the description did not amount to attorney misconduct warranting a new trial on a
16
subsequent Lioce motion, as the order in limine clearly allowed the introduction of seatbelt
17
evidence. Bayerische Motoren Werke Aktiengesellschaft v. Roth, 2011, 252 P.3d 649. New
18
19 Trial 29
20 The standards that a district court is to apply to a motion for new trial based on attorney misconduct
21
vary depending on whether counsel objected to the misconduct during trial; for objected-
22
to misconduct, a party moving for a new trial bears the burden of demonstrating that the
23
misconduct is so extreme that objection, admonishment, and curative instruction cannot remove
24
25 its effect, while, if the misconduct is not objected-to, the district court should deem the
26 issue waived unless it is plain error, which in this context exists only when the misconduct
27
amounted to irreparable and fundamental error that results in a substantial impairment of
28
- 47 -
961
1 justice or denial of fundamental rights such that, but for the misconduct, the verdict would
2 have been different. Bayerische Motoren Werke Aktiengesellschaft v. Roth, 2011, 252 P.3d
3
649. New Trial 31
4
For attorney misconduct to justify a new trial, as opposed to some other sanction, unfair prejudice
5
6
affecting the reliability of the verdict must be shown, which includes consideration of
7 whether the argument was actually proper or improper under the law. Bayerische Motoren
8 Werke Aktiengesellschaft v. Roth, 2011, 252 P.3d 649. New Trial 20

9
In civil cases, the Supreme Court will consider arguments of egregious but unobjected-to misconduct
10
at trial by counsel only in those rare circumstances where the counsel's comments are
11
of such sinister influence as to constitute “irreparable and fundamental error,” which is error
12
13 that, if not corrected, would result in a substantial miscarriage of justice or denial of fundamental
14 rights and which is present only when it is plain and clear that no other reasonable explanation
15
for the verdict exists. Ringle v. Bruton, 2004, 86 P.3d 1032, 120 Nev. 82. Appeal
16
And Error 207
17
To warrant reversal and a new trial on grounds of attorney misconduct of the prevailing
18
19 party's attorney, the flavor of misconduct must sufficiently permeate an entire proceeding to
20 provide conviction that the jury was influenced by passion and prejudice in reaching its verdict.
21
DeJesus v. Flick, 2000, 7 P.3d 459, 116 Nev. 812. New Trial 32
22
The district court may grant a new trial based upon attorney misconduct without proof that the
23
misconduct changed the outcome of the first trial. DeJesus v. Flick, 2000, 7 P.3d 459, 116
24
25 Nev. 812. New Trial 32
26 Passenger's counsel made improper “golden rule” closing arguments in personal injury action
27
against driver of other vehicle, where counsel asked jurors to “tap into feelings” about passenger's
28
- 48 -
962
1 fears in light of passenger's physical condition, asked jurors “How do you put a value on
2 not using your fingers?” after telling jury he would not trade the use of his own fingers for ten
3
million dollars, and asked jurors to “send a message” to law firms that try to prevent injured
4
people from recovering for their damages. DeJesus v. Flick, 2000, 7 P.3d 459, 116 Nev. 812.
5
6
Trial 125(1)
7 The attorney misconduct of counsel for plaintiff passenger, in injecting his personal opinions
8 and using improper “golden rule” arguments during closing arguments in personal injury action
9
against driver of other vehicle, including an argument inviting the jury to send a message
10
to all defense attorneys who try to shortchange injured people, warranted a new trial; jury's
11
award of $1.47 million must have been based on passion or prejudice, because the medical expert
12
13 testimony regarding passenger's injuries was conflicting and the award far exceeded the
14 damages passenger had sought. DeJesus v. Flick, 2000, 7 P.3d 459, 116 Nev. 812. New Trial
15
32
16
Defense counsel in medical malpractice action engaged in misconduct, the cumulative effect
17
of which deprived plaintiff of fair trial, thus warranting new trial; counsel asked expert witness
18
19 for his opinion as to causation after specifically representing to plaintiff's counsel at witness'
20 deposition that he would not ask such questions, counsel misstated expert's testimony
21
during closing argument, counsel made improper reference during closing argument to high
22
health care costs, and counsel conducted demonstration during opening argument for which no
23
foundation had been laid. Rules Civ.Proc., Rule 59(a)(2). Barrett v. Baird, 1995, 908 P.2d
24
25 689, 111 Nev. 1496. New Trial 29
26 Complaints of “highly prejudicial and inflammatory statements” allegedly made by plaintiffs'

27
counsel in closing argument did not show “egregious” conduct such as would warrant new trial
28
- 49 -
963
1 in absence of objection. Rules Civ. Proc., Rule 59(a)(6). Beccard v. Nevada Nat. Bank,
2 1983, 657 P.2d 1154, 99 Nev. 63. Appeal And Error 207
3
11. Misconduct of witnesses
4
Successor of shopping center lessor was entitled to new trial on lessee's counterclaim alleging
5
6
breach of exclusive rights where lessee's counsel had, prior to witness taking stand, threatened
7 witness and counsel for successor with slander action if testimony regarding lessee's manager's
8 intoxication during business hours proved false, where there was no evidence tending to
9
show that witness was about to lie and where trial judge failed to direct witness to respond to
10
question or otherwise allay fears after threat was made. Rules Civ.Proc., Rule 59(a). Campus
11
Village Shopping Center Trust v. Brown, 1986, 714 P.2d 566, 102 Nev. 17, rehearing denied.
12
13 Appeal And Error 1177(2)
14 12. Agreements and stipulations

15
Undisclosed pretrial agreement between plaintiffs and insurance carrier for two defendants
16
whereby plaintiffs were guaranteed $20,000 but agreed to look solely to the other defendants
17
to the extent of judgment against them, if any, did not cause trial to be so unfair that other defendants
18
19 would be entitled to new trial, though agreement possessed potential to encourage
20 such two defendants to promote a verdict in excess of $20,000, where, inter alia, there was
21
ample evidence to support the verdict, the other defendants limited their argument to liability,
22
and such two defendants, though admitting liability, did not indicate that verdict should be in
23
excess of $20,000, or in any other amount. NRCP 59(a) (1, 3). Ponderosa Timber & Clearing
24
25 Co. v. Emrich, 1970, 472 P.2d 358, 86 Nev. 625. New Trial 13
26 13. Surprise
27
New trial was not warranted on grounds of surprise based on testimony which, with reasonable
28
- 50 -
964
1 diligence, could have been anticipated. Rules Civ.Proc., Rule 59. DeLee v. Roggen,
2 1995, 907 P.2d 168, 111 Nev. 1453. New Trial 90
3
In action brought by lessors of automobile against lessee for damages and replevin of automobile,
4
lessee's failure to call a witness whom lessee had stated she intended to call at trial did
5
6
not warrant the granting of lessors' motion for new trial, since lessors were notified before trial
7 that lessee would not call such witness to testify, and lessors' failure to either exercise reasonable
8 diligence to procure witness' testimony or seek a continuance to allow them to subpoena

9
the witness precluded a claim of surprise. NRCP 59(a). Havas v. Haupt, 1978, 583 P.2d
10
1094, 94 Nev. 591. New Trial 95
11
Plaintiffs introduced an account showing a general indebtedness to them of $2,000, in which
12
13 there was a mistake of $700 in computing interest. The error, though patent, escaped notice at
14 the first trial. At the second trial, the court was not advised of the error until after the submission
15
of the cause to the jury. The jury found a verdict for defendant. One of plaintiffs made affidavit
16
that he believed that the verdict was rendered for defendant owing to the jury's discovery
17
of the error, which plaintiffs did not know of until the testimony had been closed, that said
18
19 account was not made up by him, or his coplaintiff, but by another person, whom they believed
20 to be a correct accountant, and that they did not examine the same. Held, that the
21
ground of surprise, within the meaning of the statute, was established, and that the order of the
22
district court granting a new trial was correct. Sultan v. Sherwood, 1884, 5 P. 71, 18 Nev. 454.
23
New Trial 89
24
25 14. Irregularity in proceedings
26 Beneficiary of family trust failed to demonstrate that procedural irregularities denied him a
27
fair hearing regarding petition for instructions relating to trust administration, and thus was
28
- 51 -
965
1 not entitled to a new hearing, though beneficiary alleged that trial court failed to allow him to
2 call witnesses or present testimony at the hearing, as beneficiary did not specify what witnesses
3
or evidence he would have presented or how he was prejudiced. Rules Civ.Proc., Rule
4
59. Hannam v. Brown, 1998, 956 P.2d 794, 114 Nev. 350. Trusts 267
5
6
Facts that jurors knocked on jury room door and judge's secretary appeared, that juror told her
7 that jury had a question regarding an instruction, that secretary instructed juror to reduce question
8 to writing and informed jury that judge and attorneys were not presently available, and
9
that jury arrived at verdict without submitting written question to trial judge, did not amount
10
to irregularity in proceedings of jury in eminent domain action sufficient to support a new tri-
11
al. Rules Civ.Proc., Rule 59. Pappas v. State ex rel. Dept. of Transp., 1988, 763 P.2d 348, 104
12
13 Nev. 572. Eminent Domain 224
14 15. Verdict form

15
Trial court erred in granting new trial on basis of jury's failure to fill in special verdict form;
16
evidence indicated that jury had made necessary findings as to comparative negligence and
17
simply filled in bottom line figure on general verdict. Carlson v. Locatelli, 1993, 849 P.2d
18
19 313, 109 Nev. 257. New Trial 58
20 16. Inconsistency of verdict

21
Where jury returns inconsistent verdict, it is incumbent upon trial court to attempt to clarify
22
verdict, and such an effort to determine what jury intended by its verdict generally will not
23
impermissibly delve into mental processes of jury in reaching the verdict; where possible, verdict
24
25 should be salvaged so that no new trial is required. Carlson v. Locatelli, 1993, 849 P.2d
26 313, 109 Nev. 257. Trial 344

27
17. Verdict contrary to evidence
28
- 52 -
966
1 Jury verdict in favor of service station buyer, in breach of contract action against seller, was
2 not against the clear weight of the evidence, and therefore district court abused its discretion
3
in granting seller new trial; substantial evidence went both ways on points on which district
4
court believed that jury had failed to appreciate or consider certain facts, and assumption that
5
6
jury did not consider buyer's failure to mitigate damages was unwarranted in light of verdict
7 that was approximately $800,000 less than buyer requested. Union Oil Co. of California v.
8 Terrible Herbst, Inc., 2003, 331 F.3d 735, certiorari denied 124 S.Ct. 1060, 540 U.S. 1107,
9
157 L.Ed.2d 892. Federal Civil Procedure 2341
10
Document reciting that development agreement had been entered into did not render jury's
11
verdict for property owners manifestly and palpably contrary to evidence so as to authorize
12
13 new trial in owners' action against title company for breach of escrow agreement requiring
14 that developer and finance company enter into development agreement by certain date before
15
title company could convey owners' properties, where there was no copy of development
16
agreement, title company deeded out bulk of properties one to three months after date specified
17
in escrow agreement and title company did not notify owners of conveyances. Rules
18
19 Civ.Proc., Rule 59. Kroeger Properties & Development, Inc. v. Silver State Title Co., 1986,
20 715 P.2d 1328, 102 Nev. 112. New Trial 72(8)

21
Where evidence in trial of negligence action is in conflict and question as to plaintiff's contributory
22
negligence is one upon which reasonable men might differ, it is error to grant new
23
trial on ground that evidence was insufficient to justify verdict. NRCP 59(a). Sierra Pac.
24
25 Power Co. v. Day, 1964, 391 P.2d 501, 80 Nev. 224. New Trial 71
26 18. Verdict contrary to law

27
Court may not substitute its own judgment in place of the jury's judgment on motion for new
28
- 53 -
967
1 trial unless the jury erred as a matter of law, and court may not grant a new trial if the question
2 only concerns the weight of the evidence. Brascia v. Johnson, 1989, 781 P.2d 765, 105
3
Nev. 592. New Trial 72(2)
4
Plaintiff's contention that evidence established liability of defendant as matter of law was not
5
6
ground for motion for new trial in absence of plain error in record or showing of manifest injustice.
7 Amundsen v. Ohio Brass Co., 1973, 513 P.2d 1234, 89 Nev. 378. New Trial 68.1
8 Plaintiff which made no objection to any error of law touching on punitive damages was not
9
entitled to limited new trial on that issue under rule providing that new trial may be granted to
10
all or any of the parties on all or part of the issues for error in law occurring at trial and objected
11
to by the party making the motion. NRCP 59(a)(7). City of Reno v. Silver State Flying
12
13 Service, Inc., 1968, 438 P.2d 257, 84 Nev. 170. New Trial 9
14 19. Verdict effected by passion or prejudice, generally

15
A violation of an order granting a motion in limine may only serve as a basis for a new trial
16
when the order is specific in its prohibition, the violation is clear, and unfair prejudice is
17
shown. Bayerische Motoren Werke Aktiengesellschaft v. Roth, 2011, 252 P.3d 649. New Trial
18
19 20
20 On appeal of an order for a new trial that is conditional upon the plaintiff's refusal to accept an
21
order of remittitur, appellate court accords deference to the trial judge's decision and rejects a
22
challenge to the judge's discretion if there is a material conflict of evidence regarding the extent
23
of the damages, but if there is no conflict, the order to remit becomes suspect unless the
24
25 amount awarded by the jury is so excessive as to suggest passion and prejudice. Canterino v.
26 The Mirage Casino-Hotel, 2001, 16 P.3d 415, 117 Nev. 19, opinion reinstated on rehearing ,
27
rehearing granted 31 P.3d 1005, modified on rehearing 42 P.3d 808, 118 Nev. 191, rehearing
28
- 54 -
968
1 denied. Appeal And Error 1015(4)
2 Damages awards to hotel patron who was severely beaten and robbed in hotel hallway of
3
$500,000 for past physical pain and mental anguish, $1,500,000 for future physical pain and
4
mental anguish, $500,000 for past physical impairment, and $1,500,000 for future physical
5
6
impairment were not excessive, in light of uncontradicted evidence of medical experts that
7 patron suffered permanent neurological damage, including hearing, balance, and pyramidal
8 track impairment, and suffered psychological injuries, including agoraphobia, panic disorder,
9
and post-traumatic stress disorder, which kept him virtually housebound, unable to work or
10
participate in sports or activities he had previously enjoyed. Canterino v. The Mirage Casino-
11
Hotel, 2001, 16 P.3d 415, 117 Nev. 19, opinion reinstated on rehearing , rehearing granted 31
12
13 P.3d 1005, modified on rehearing 42 P.3d 808, 118 Nev. 191, rehearing denied. Damages
14 127.15; Damages 127.17; Damages 140.7

15
In actions for damages in which the law provides no legal rule of measurement it is the special
16
province of the jury to determine the amount that ought to be allowed, so that a court is not
17
justified in reversing the case or granting a new trial on the ground that the verdict is excessive,
18
19 unless it is so flagrantly improper as to indicate passion, prejudice or corruption in the
20 jury. Canterino v. The Mirage Casino-Hotel, 2001, 16 P.3d 415, 117 Nev. 19, opinion reinstated
21
on rehearing , rehearing granted 31 P.3d 1005, modified on rehearing 42 P.3d 808, 118
22
Nev. 191, rehearing denied. Appeal And Error 1015(4); Damages 96; Damages
23
104; Damages 119
24
25 Award of punitive damages should not be disturbed unless it is so large as to appear to have
26 been given under the influence of passion or prejudice. Rules Civ.Proc., Rule 59(a)(6); N.R.S.
27
42.010. Hale v. Riverboat Casino, Inc., 1984, 682 P.2d 190, 100 Nev. 299. New Trial
28
- 55 -
969
1 77(2)
2 Large award of punitive damages alone does not conclusively indicate that passion and prejudice
3
influenced the trier of fact. Rules Civ.Proc., Rule 59(a)(6); N.R.S. 42.010. Hale v. Riverboat
4
Casino, Inc., 1984, 682 P.2d 190, 100 Nev. 299. New Trial 77(2)
5
6
Award to customer of casino of punitive damages of $97,900, which award amounted to less
7 than 1.5% of casino's annual net profit and less than 1/2 percent of its net worth, was not excessive,
8 where customer had conscientiously attempted to assure the return of a lost wallet,
9
and, for his concern, was harassed, threatened, imprisoned, and manacled after being physically
10
assaulted, was then escorted to jail and handcuffed, booked, and held in jail for a good
11
portion of a night, and was subsequently forced to incur the substantial expense and ignominy
12
13 of a criminal trial after casino pursued criminal prosecution. Rules Civ.Proc., Rule 59(a)(6);
14 N.R.S. 42.010. Hale v. Riverboat Casino, Inc., 1984, 682 P.2d 190, 100 Nev. 299. Damages
15
94.10(1)
16
Amount of award of punitive damages need not be proportional to the amount of compensatory
17
damages. Rules Civ.Proc., Rule 59(a)(6); N.R.S. 42.010. Hale v. Riverboat Casino, Inc.,
18
19 1984, 682 P.2d 190, 100 Nev. 299. Damages 94.6
20 Sum of $50,000 was maximum amount that could reasonably be awarded to gubernatorial
21
candidate defamed on live television broadcast by statement that he bounced check, and implication
22
that he did not pay his bills and was not honorable; thus, jury award of $675,000 was
23
excessive, not supported by evidence, must have been given under influence of passion or prejudice,
24
25 and constituted threats to exercise of free speech. Rules Civ.Proc., Rule 59(a)(6);
26 U.S.C.A. Const.Amend. 1. Nevada Independent Broadcasting Corp. v. Allen, 1983, 664 P.2d
27
337, 99 Nev. 404, 37 A.L.R.4th 1070. Libel And Slander 121(2)
28
- 56 -
970
1 Mere fact that verdict is large is not conclusive that it is result of passion or prejudice. Rules
2 Civ.Proc., Rule 59(a)(6). Beccard v. Nevada Nat. Bank, 1983, 657 P.2d 1154, 99 Nev. 63. Appeal
3
And Error 1004(5)
4
Since malice in fact had to be inferred from disregard of known safety procedures by defendants,
5
6
and in view of subjective nature of punitive damages, absence of workable standards
7 with which to evaluate propriety of amount of punitive damages, and arguable conflict of
8 evidence regarding malice in fact, granting conditional motion for new trial unless each
9
plaintiff would accept $85,000 remittitur of $125,000 punitive damages that had been awarded
10
each plaintiff along with compensatory awards of $35,000 and $150,000 respectively was not
11
abuse of discretion in action for injuries sustained when plaintiffs inhaled chlorine gas after
12
13 cylinder of that gas exploded spewing compressed chlorine over swimming pool and patio
14 area. (Per Thompson, J., with one Justice concurring and one Justice specially concurring.)
15
N.R.S. 42.010; NRCP 59(a)(6). Leslie v. Jones Chemical Co., Inc., 1976, 551 P.2d 234, 92
16
Nev. 391. New Trial 162(1)
17
Where reviewing court was wholly unable to declare that had the jurors properly applied the
18
19 instructions of the court it would have been impossible for them to reach the verdict which
20 they reached in favor of following motorist in action by preceding motorist and his passenger
21
against following motorist for injuries sustained in rear-end collision, grant of new trial could
22
not be sustained. NRCP 59. Fox v. Cusick, 1975, 533 P.2d 466, 91 Nev. 218. Appeal And Error
23
1015(1)
24
25 Absent any information as to net worth of individual defendant by which reasonableness of
26 award of punitive damages of $10,000 to one plaintiff and $5,000 to another plaintiff could be
27
judged and absent evidence that trial court in awarding such amounts acted under passion or
28
- 57 -
971
1 prejudice, appellate court would not question amounts of awards or set them aside as being
2 excessive. N.R.S. 42.010; NRCP 59. Caple v. Raynel Campers, Inc., 1974, 526 P.2d 334, 90
3
Nev. 341. Appeal And Error 705
4
Mere fact that punitive damage award is large is not conclusive that it is result of passion or
5
6
prejudice. NRCP 59(a). Nevada Cement Co. v. Lemler, 1973, 514 P.2d 1180, 89 Nev. 447.
7 Damages 94.1
8 District court, in personal injury action in which jury awarded plaintiff, who had incurred
9
$529.50 special damages, $10,000 compensatory damages, possessed power to enter order
10
granting new trial unless plaintiff accepted remittitur of $7,500. NRCP 59(a) (6). Harris v.
11
Zee, 1971, 486 P.2d 490, 87 Nev. 309. New Trial 162(3)
12
13 Award in amount of $2,500 for physical and mental distress suffered by plaintiff when he partially
14 consumed the contents of a bottled beverage containing a decomposed mouse was not so
15
excessive as to support determination that the damages must have been given under the influ-
16
ence of passion or prejudice. NRCP 51, 59(a) (6). Shoshone Coca-Cola Bottling Co. v. Dolinski,
17
1966, 420 P.2d 855, 82 Nev. 439. Damages 127.11; Damages 140.7
18
19 Damages to compensate for injury to reputation, humiliation, embarrassment, mental suffering
20 and inconvenience of plaintiff suing for malicious prosecution should not be given by jury under
21
influence of passion or prejudice. NRCP 59(a) (6). Miller v. Schnitzer, 1962, 371 P.2d
22
824, 78 Nev. 301. Malicious Prosecution 69
23
20. Plain error
24
25 In civil cases, the Supreme Court will consider arguments of egregious but unobjected-to misconduct
26 at trial by counsel only in those rare circumstances where the counsel's comments are
27
of such sinister influence as to constitute “irreparable and fundamental error,” which is error
28
- 58 -
972
1 that, if not corrected, would result in a substantial miscarriage of justice or denial of fundamental
2 rights and which is present only when it is plain and clear that no other reasonable explanation
3
for the verdict exists. Ringle v. Bruton, 2004, 86 P.3d 1032, 120 Nev. 82. Appeal
4
And Error 207
5
6
The inflammatory quality and sheer quantity of attorney misconduct warranted review, to prevent
7 plain error, as to the closing argument of counsel for vehicle passenger in personal injury
8 action against driver of another vehicle who had forced passenger's vehicle off the road,
9
though the defendant had failed to object to the closing argument at trial. DeJesus v. Flick,
10
2000, 7 P.3d 459, 116 Nev. 812. Appeal And Error 207
11
Plain error or manifest injustice exception to Rules Civ.Proc., Rule 59, eliminating insufficiency
12
13 of evidence as ground for granting new trial, must be strictly construed. Kroeger Properties
14 & Development, Inc. v. Silver State Title Co., 1986, 715 P.2d 1328, 102 Nev. 112. New
15
Trial 70
16
If Supreme Court, on appeal from order granting new trial on basis of insufficiency of the
17
evidence to justify the verdict, perceives plain error or there is a showing of manifest injustice,
18
19 it may sustain the lower court in ordering a new trial. NRCP 59. Fox v. Cusick, 1975,
20 533 P.2d 466, 91 Nev. 218. Appeal And Error 1015(1)

21
21. Discretion of trial court
22
Decision to grant or deny motion for new trial rests within sound discretion of trial court, and
23
Supreme Court will not disturb that decision absent palpable abuse. Rules Civ.Proc., Rule
24
25 59(a). Edwards Industries, Inc. v. DTE/BTE, Inc., 1996, 923 P.2d 569, 112 Nev. 1025; DeLee
26 v. Roggen, 1995, 907 P.2d 168, 111 Nev. 1453; Southern Pac. Transp. Co. v. Fitzgerald, 1978,
27
577 P.2d 1234, 94 Nev. 241, rehearing denied 579 P.2d 1251, 94 Nev. 245.
28
- 59 -
973
1 Standard of review for granting or denying motion for new trial is abuse of discretion. Rules
2 Civ.Proc., Rule 59(a). Dow Chemical Co. v. Mahlum, 1998, 970 P.2d 98, 114 Nev. 1468, rehearing
3
denied 973 P.2d 842, 115 Nev. 13. Appeal And Error 977(3); Appeal And Error
4
977(5)
5
6
An order granting a new trial for insufficiency of conflicting evidence will not be disturbed in
7 the absence of a clear abuse of discretion. Goldfield Mohawk Mining Co. v. Frances-Mohawk
8 Mining & Leasing Co., 1913, 129 P. 315, 35 Nev. 423. Appeal And Error 979(2)
9
22. Newly discovered evidence
10
Divorced wife's claim presented for first time in motion for new trial, that value of parties'
11
house increased in value in excess of that fixed in decree must be considered belated, since it
12
13 might have been discovered and proffered, before court's decision, by motion to reopen case
14 for additional evidence. NRCP 59(a)(4). Burr v. Burr, 1980, 611 P.2d 623, 96 Nev. 480. Divorce
15
151
16
“Newly discovered evidence” refers to evidence of facts existing at time of trial, not facts occurring
17
subsequent to trial. Fox v. First Western Sav. & Loan Ass'n, 1970, 470 P.2d 424, 86
18
19 Nev. 469. New Trial 100
20 Motion for new trial based upon newly discovered evidence which could not be brought under
21
rule providing grounds for motion for new trial because time for filing had expired could not
22
be brought under rule providing grounds for relief from judgment, since newly discovered
23
evidence was not a ground for relief under that rule. NRCP 59(a), 60(b). Horton v. D. I. Operating
24
25 Co., 1968, 448 P.2d 36, 84 Nev. 694. Judgment 378
26 While newly discovered evidence is a ground for motion for new trial under Rule 59(a) it is
27
not ground for relief from a judgment under Rule 60(b) and the appellant was not entitled to
28
- 60 -
974
1 an order remanding the case for further consideration on the ground that certain evidence was
2 discovered after the appeal was taken. Rules of Civil Procedure, rules 59(a), 60(b); Fed.Rules
3
Civ.Proc., rule 60(b), 28 U.S.C.A. Child v. George Miller, Inc., 1958, 327 P.2d 342, 74 Nev.
4
223. Appeal And Error 1177(1); Judgment 378
5
6
The alleged newly discovered evidence must be material or important to the party seeking a
7 new trial. Whise v. Whise, 1913, 131 P. 967, 36 Nev. 16. New Trial 103
8 Newly discovered evidence on a matter collateral to the issues is seldom ground for a new trial.
9
Whise v. Whise, 1913, 131 P. 967, 36 Nev. 16. New Trial 103
10
In order to compel the granting of a new trial, newly discovered evidence must be so strong as
11
to make it probable that a different result would be obtained in another trial; it not being sufficient
12
13 merely that it “might” change the result. Whise v. Whise, 1913, 131 P. 967, 36 Nev. 16.
14 New Trial 108(1)

15
Newly discovered evidence, which could only be used by way of impeachment, is not ground
16
for granting a new trial, unless evidence of the witness sought to be impeached was so important,
17
and the impeaching evidence so convincing, that a different result would necessarily follow
18
19 the admission of the impeaching evidence. Whise v. Whise, 1913, 131 P. 967, 36 Nev. 16.
20 New Trial 108(2)

21
23. Motion to alter or amend judgment--In general
22
So long as a post-judgment motion for reconsideration is in writing, timely filed, states its
23
grounds with particularity, and requests a substantive alteration of the judgment, not merely
24
25 the correction of a clerical error, or relief of a type wholly collateral to the judgment, there is
26 no reason to deny it status as a motion to alter or amend judgment, which tolls the time in
27
which a party has to file notice of appeal; disapproving Alvis v. State, Gaming Control Bd.,
28
- 61 -
975
1 99 Nev. 184, 660 P.2d 980, Nardozzi v. Clark Co. School Dist., 108 Nev. 7, 823 P.2d 285, and
2 Whitehead v. Norman Kaye Real Estate, 80 Nev. 383, 395 P.2d 329. AA Primo Builders, LLC
3
v. Washington, 2010, 245 P.3d 1190. Appeal and Error 428(2)
4
Petitioner's postjudgment motions to amend or make additional findings of fact or to alter or
5
6
amend the judgment denying his petition to seal court records were “tolling motions,” and
7 thus, petitioner's notice of appeal filed before trial court's disposition of such motions was
8 filed too early to vest jurisdiction in the appellate court. In re Duong, 2002, 59 P.3d 1210, 118
9
Nev. 920. Records 32
10
Petitioner's trial court motions requesting additional findings of fact and requesting that the
11
trial court alter or amend the order or judgment did not toll or extend the time to file a notice
12
13 of appeal from the trial court's order denying post-conviction petition for writ of habeas corpus.
14 Klein v. Warden, 2002, 43 P.3d 1029, 118 Nev. 305. Habeas Corpus 819
15
The civil procedure rule tolling the time for filing a notice of appeal if the appellant makes a
16
trial court motion requesting additional findings of fact or requesting that the trial court alter
17
or amend the order or judgment does not apply to statutory procedures governing the litigation
18
19 of post-conviction habeas corpus petitions. Klein v. Warden, 2002, 43 P.3d 1029, 118 Nev.
20 305. Habeas Corpus 819

21
A district court lacks jurisdiction to allow amendment of a complaint, once final judgment is
22
entered, unless that judgment is first set aside or vacated pursuant to the state's rules of civil
23
procedure. Rules Civ.Proc., Rules 59(e), 60(b). Greene v. Eighth Judicial Dist. Court of
24
25 Nevada ex rel. County of Clark, 1999, 990 P.2d 184, 115 Nev. 391. Pleading 245(7)
26 Motion to amend findings of fact or conclusions of law in district court order directing partial
27
distribution of testate estate did not toll running of 30-day period for appealing interlocutory
28
- 62 -
976
1 probate orders. N.R.S. 155.190; Rules App.Proc., Rule 4(a)(2); Rules Civ.Proc., Rules 52(b),
2 59. Matter of Estate of Miller, 1995, 888 P.2d 433, 111 Nev. 1. Executors And Administrators
3
314(12)
4
Motion to amend judgment, rather than motion to retax and to settle costs, was proper method
5
6
for amending judgment of $54,958.24, which was based upon offer of judgment of $50,000,
7 including costs of $4,958.24, where costs were never disputed, but amount of total judgment
8 was disputed. Rules Civ.Proc., Rule 59(e); N.R.S. 18.110, subd. 4. Fleischer v. August, 1987,
9
737 P.2d 518, 103 Nev. 242. Judgment 90
10
Motion to amend judgment by striking award of costs was untimely when served 27 days after
11
service of notice of entry of judgment even though memorandum of costs had not been served
12
13 within five days after entry of judgment where, when memorandum of costs was not filed,
14 motion to amend judgment could have been made within time limits, and thus notice of appeal
15
filed after entry of amended judgment which did not affect merits of judgment was untimely.
16
Rules App.Proc., Rule 4(a); Rules Civ.Proc. Rule 59(e). Morrell v. Edwards, 1982, 640 P.2d
17
1322, 98 Nev. 91. Appeal And Error 428(2); Judgment 321
18
19 Though motions for summary judgment should ordinarily be in writing, where codefendants
20 orally joined in a written motion submitted by another codefendant and plaintiff made no objection
21
to such procedure during argument on the motion, and where there was no prejudice to
22
the plaintiff, which was afforded an opportunity to present argument on the merits of issue
23
raised in motion to amend summary judgment by denying the oral summary judgment motions,
24
25 there was no error in denial of the motion to amend. NRCP 56, 59. Exber, Inc. v. Sletten
26 Const. Co., 1976, 558 P.2d 517, 92 Nev. 721. Judgment 183
27
Motion to alter or amend judgment could not be utilized by defendant to alter or amend order
28
- 63 -
977
1 denying defendant's motion to set aside default entered against it and was not therefore available
2 to toll 30-day appeal period, which had expired at time defendant filed notice of appeal,
3
from order denying motion to set aside default. NRCP 59(e), 60(b), 73(a). Paradise Palmes
4
Community Ass'n v. Paradise Homes, 1970, 477 P.2d 859, 86 Nev. 859. Appeal And Error
5
6
346.2; Judgment 173
7 Motion to amend judgment was not invalidated by fact that it was not in writing where motion
8 was stated in written notice of hearing of motion. NRCP 7(b) and (1), 59(e). United Pac. Ins.
9
Co. v. St. Denis, 1965, 399 P.2d 135, 81 Nev. 103. Judgment 319
10
Motion to alter or amend judgment must state grounds with particularity and relief sought.
11
NRCP 59. United Pac. Ins. Co. v. St. Denis, 1965, 399 P.2d 135, 81 Nev. 103. Judgment
12
13 319
14 Motion to alter or amend judgment may not be bypassed or avoided by obtaining from court,
15
on ex parte application, order to show cause, which also avoids and bypasses requirement that
16
grounds of motion shall state with particularity grounds therefor and shall set forth relief or
17
order sought. NRCP 59. United Pac. Ins. Co. v. St. Denis, 1965, 399 P.2d 135, 81 Nev. 103.
18
19 Judgment 319
20 24. ---- Time for motion to alter or amend judgment

21
Rule of civil procedure regarding motions to amend judgment and rule of appellate procedure
22
that allows such motions to toll time in which to file notice of appeal echo federal rules, and a
23
court may consult federal law in interpreting them. AA Primo Builders v. Washington, 2010,
24
25 2010 WL 5422614. Courts 97(1)
26 Contractor's post-judgment “motion to amend order” qualified as a motion to alter or amend

27
judgment, which tolled the time contractor had to file notice of appeal; the motion was in writing,
28
- 64 -
978
1 invoked rule on amendment of judgments, asked to vacate the judgment of dismissal, and
2 appended proof that the charter, for want of which contractor's suit was lost, had been restored
3
and urged the district court to consider statute, which provided that reinstatement of an
4
administratively
5
6
revoked limited liability charter related back to the date on which the company forfeited
7 its right to transact business as if such right had at all times remained in full force and
8 effect; disapproving Alvis v. State, Gaming Control Bd., 99 Nev. 184, 660 P.2d 980, Nardozzi
9
v. Clark Co. School Dist., 108 Nev. 7, 823 P.2d 285, and Whitehead v. Norman Kaye Real Estate,
10
80 Nev. 383, 395 P.2d 329. AA Primo Builders, LLC v. Washington, 2010, 245 P.3d
11
1190. Appeal and Error 428(2)
12
13 Timely motions for amendment of trial court's findings, amendment of the judgment and new
14 trial tolled running of appeal period and rendered ineffective all notices of appeal which were
15
filed before formal disposition of the timely postjudgment motions and thus, trial court erred
16
in concluding that it lacked jurisdiction to entertain the timely tolling motions. Rules
17
Civ.Proc., Rules 52(b), 59(a, e); Rules App.Proc., Rule 4(a)(2). Chapman Industries v. United
18
19 Ins. Co. of America, 1994, 874 P.2d 739, 110 Nev. 454. Appeal And Error 346.2; Appeal
20 And Error 428(2)

21
Grant of motion for stay of execution does not provide basis for district court to suspend the
22
time for filing motion to alter or amend judgment. Rules Civ.Proc., Rules 59(e), 62(b). Stapp
23
v. Hilton Hotels Corp., 1992, 826 P.2d 954, 108 Nev. 209, rehearing denied. Judgment
24
25 321
26 District court was without jurisdiction to consider untimely motion to amend judgment, and
27
thus amended judgment entered pursuant thereto was void. Rules Civ.Proc., Rule 59(e). Stapp
28
- 65 -
979
1 v. Hilton Hotels Corp., 1992, 826 P.2d 954, 108 Nev. 209, rehearing denied. Judgment
2 321
3
Filing notice of appeal before district court entered order denying rehearing did not render appeal
4
void, on theory that motion for rehearing is functional equivalent of motion to alter or
5
6
amend judgment, and thus falls within Civil Procedure Rule providing that appeal is void
7 when notice is filed before formal disposition of timely postjudgment motion. Rules
8 Civ.Proc., Rules 50(b), 52(b), 56(e), 59(e). Nardozzi v. Clark County School Dist., 1992, 823
9
P.2d 285, 108 Nev. 7, rehearing denied. Appeal And Error 337(2)
10
Where motion “for an order amending and altering the judgment herein regarding attorney's
11
fees” was not filed until more than ten days after movants' counsel was served with notice of
12
13 entry of order granting such judgment, district court was without jurisdiction to consider motion;
14 and, thus, order granting motion was void. NRAP 4(a), 26(a); NRCP 59, 59(e). Oelsner
15
v. Charles C. Meek Lumber Co. of Carson City, 1976, 555 P.2d 217, 92 Nev. 576. Judgment
16
321
17
25. ---- Service of notice, motion to alter or amend judgment
18
19 If motion to alter or amend judgment is not served within ten days after service of written notice
20 of entry of judgment, time for appeal is not tolled. Rules App.Proc., Rule 4(a); Rules
21
Civ.Proc., Rule 59(e). Morrell v. Edwards, 1982, 640 P.2d 1322, 98 Nev. 91. Appeal And Error
22
346.2
23
Where motion to alter or amend judgment by striking award of costs was not filed until 27
24
25 days after service of notice of entry of judgment, service of motion did not toll time for appeal.
26 Rules App.Proc., Rule 4(a); Rules Civ.Proc., Rule 59(e). Morrell v. Edwards, 1982, 640
27
P.2d 1322, 98 Nev. 91. Appeal And Error 346.2
28
- 66 -
980
1 District court was without jurisdiction to amend judgment in favor of plaintiffs because no notice
2 to amend was filed and no notice was given to plaintiffs. Rules Civ.Proc., Rule 59(e).
3
Horvath v. Gladstone, 1981, 637 P.2d 531, 97 Nev. 594. Judgment 323
4
26. Motion for new trial--In general
5
6
Where daughter, who filed motion after district judge denied daughter's motion to compel
7 father to comply with support provisions of divorce decree, merely requested an opportunity
8 to reargue the law and did not seek a new trial on the facts, the motion was a motion for reargument
9
rather than motion for new trial, and, thus, daughter was not bound by procedural constraints
10
in rule relating to motions for new trial. NRCP 59, 59(b). Gibbs v. Giles, 1980, 607
11
P.2d 118, 96 Nev. 243. Child Support 469
12
13 27. ---- Time for motion for new trial
14 Ten-day time period for filing motions for judgment as a matter of law and for a new trial
15
should be calculated first under rule excluding intermediate Saturdays, Sundays, and nonjudi-
16
cial days, and then three additional days should be added if service of written notice of entry
17
of judgment was made by mail or electronic means; abrogating Custom Cabinet Factory of
18
19 New York v. District Court, 119 Nev. 51, 62 P.3d 741, and Ross v. Giacomo, 97 Nev. 550, 635
20 P.2d 298. Winston Products Co. v. DeBoer, 2006, 134 P.3d 726, 122 Nev. 517. Time 8.5;
21
Time 10(6); Time 10(7)
22
Litigant's timely filed motion for judgment as a matter of law or for a new trial tolled the time
23
to appeal from post-judgment order awarding attorney fees, and thus appeal was timely. Winston
24
25 Products Co. v. DeBoer, 2006, 134 P.3d 726, 122 Nev. 517. Appeal And Error 345.1
26 ; Appeal And Error 346.1

27
A timely filed tolling motion directed at the final judgment, such as a motion for judgment as
28
- 67 -
981
1 a matter of law or a motion for a new trial, tolls the time to appeal from both the final judgment
2 and special orders entered after final judgment. Winston Products Co. v. DeBoer, 2006,
3
134 P.3d 726, 122 Nev. 517. Appeal And Error 345.1; Appeal And Error 346.1
4
Litigant's motion for judgment as a matter of law or for a new trial was timely filed after tenday
5
6
period for filing was extended under rule excluding intervening Saturdays, Sundays, and
7 nonjudicial days, and three additional days were added for service by mail, and thus motion
8 effectively tolled the time to appeal. Winston Products Co. v. DeBoer, 2006, 134 P.3d 726,
9
122 Nev. 517. Appeal And Error 345.1; Appeal And Error 346.1; Time 8.5;
10
Time 10(7)
11
A notice of appeal filed after the timely filing of a post-judgment tolling motion, but before
12
13 the formal disposition of the motion, is ineffective and fails to vest jurisdiction in the appellate
14 court. Moran v. Bonneville Square Associates, 2001, 25 P.3d 898, 117 Nev. 525. Appeal
15
And Error 428(2)
16
Timely motion for new trial is a tolling motion for purposes of rule providing that notice of
17
appeal filed before formal disposition of any timely postjudgment motion shall have no effect.
18
19 Rules Civ.Proc., Rule 59(a); Rules App.Proc., Rule 4(a)(2). Chapman Industries v. United Ins.
20 Co. of America, 1994, 874 P.2d 739, 110 Nev. 454. Appeal And Error 428(2)
21
Service of motion for new trial less than ten days after service of written notice of entry of
22
judgment was timely. NRCP 59(b). Landmark Plaza, Inc. v. Deligatti, 1964, 389 P.2d 81, 80
23
Nev. 48. New Trial 138
24
25 Where written notice of entry of judgment was served and filed on May 5 and on May 12
26 parties signed stipulation extending time to move for new trial to June 6, court could not, by
27
ex parte order entered on June 2, extend time to move for new trial until June 27, even if extension
28
- 68 -
982
1 by stipulation was valid. NRCP 6(b), 59(b), 73(a). Culinary and Hotel Service Work-
2 ers Union, Local No. 226 v. Haugen, 1960, 357 P.2d 113, 76 Nev. 424, certiorari dismissed 81
3
S.Ct. 1349, 366 U.S. 906, 6 L.Ed.2d 239. New Trial 118
4
Where the statute requires notice in writing of the decision of the court to be served, to cause
5
6
the time to run against a motion for a new trial, a waiver of the right of defendant to notice of
7 judgment against him cannot be inferred from an oral request by his attorney, made on the
8 street to plaintiff's attorney, that he add no more costs in entering judgment than he can help.
9
State v. Murphy, 1885, 6 P. 840, 19 Nev. 89. New Trial 138
10
Where an attorney was willing to give an extension of time for preparing a statement of the
11
case for the purpose of a new trial, if he could do so without waiving any right of his client in
12
13 other respects, but was very guarded in signing any stipulation not to waive other rights, there
14 was no waiver of a notice of new trial. Killip v. Empire Mill Co., 1866, 2 Nev. 34. New Trial
15
139
16
When no notice of intention to move for a new trial is made within two days of the rendition
17
of judgment, the court, by adjourning in the meantime, loses jurisdiction of the case, and has
18
19 no authority subsequently to grant leave to give the notice nunc pro tunc. Killip v. Empire
20 Mill Co., 1866, 2 Nev. 34. New Trial 138

21
Under Prac. Act, § 195, which requires a notice of intention to move for a new trial to be given
22
within two days after trial, and within five days thereafter the necessary statement or affidavits
23
to be filed, but which does not in terms require notice of intention to be given in writing,
24
25 a mere verbal notice of an intention to move for a new trial, given out of court in a conversation
26 with the successful party, is not sufficient; but the notice must be in writing, or in
27
open court, and a minute made of it. Killip v. Empire Mill Co., 1866, 2 Nev. 34. New Trial
28
- 69 -
983
1 137
2 28. ---- Waiver of notice, motion for new trial
3
Where notice of an intention by some of several defendants to move for a new trial is waived
4
by a co-defendant, by joining in the statement on such motion, neither he nor the plaintiff can
5
6
complain, on an appeal from an order denying the motion for new trial, of the failure to serve
7 such notice on the co-defendant. Judgment (1899) 56 P. 231, 24 Nev. 422, affirmed. Bliss v.
8 Grayson, 1900, 59 P. 888, 25 Nev. 329. Appeal And Error 882(20)

9
28.5. Preservation of issue for review or motion
10
Passenger's motion in limine regarding seatbelt evidence and the use of such evidence, in
11
products liability and negligence action brought by passenger injured in a single-car rollover
12
13 against automobile manufacturer and driver, did not serve as a continuing objection under
14 Lioce to alleged misconduct by manufacturer's attorney in the use of such evidence during
15
opening statement; statute preventing the use of seatbelt evidence to establish duty or fault did
16
not prohibit the admission of seatbelt evidence in all proceedings, order specifically allowed
17
seatbelt evidence to be introduced, allowing manufacturer to introduce seatbelt nonuse evidence
18
19 without arguing causation was a delicate and difficult line to draw, and passenger was required
20 to object during opening statement in order to allow the trial court to define the boundaries
21
of the order in limine. Bayerische Motoren Werke Aktiengesellschaft v. Roth, 2011, 252
22
P.3d 649. Pretrial Procedure 3
23
Passenger injured in single-car rollover waived, for purposes of a subsequent Lioce motion for
24
25 a new trial, objection that remarks made by automobile manufacturer's attorney in opening
26 statement, that passenger was ejected because she was not wearing her seatbelt, that if she had
27
not been ejected she would not have suffered a spinal cord injury, and that driver was wearing
28
- 70 -
984
1 her seatbelt and was not ejected, violated order in limine regarding the use of seatbelt evidence
2 in products liability and negligence action against manufacturer and driver, where passenger
3
did not contemporaneously object to such remarks. Bayerische Motoren Werke Aktiengesellschaft
4
v. Roth, 2011, 252 P.3d 649. New Trial 31
5
6
29. Affidavits
7 The affidavits on a motion for a new trial on the ground of newly discovered evidence must
8 contain the facts which show the use of reasonable diligence to discover such evidence before
9
trial, and a mere assertion that all reasonable diligence was used is insufficient. Pinschowers
10
v. Hanks, 1883, 1 P. 454, 18 Nev. 99. New Trial 150(4)
11
30. Order granting or refusing new trial
12
13 When ruling on a motion for a new trial based on attorney misconduct, district courts must
14 make express factual findings, applying the Lioce standards. Bayerische Motoren Werke
15
Aktiengesellschaft
16
v. Roth, 2011, 252 P.3d 649. New Trial 29; New Trial 163(1)
17
Under rules of civil procedure, trial court, in granting defendant's motion for new trial based
18
19 on several different grounds was not required to state in writing the grounds upon which it
20 granted the new trial. N.C.L.1929, § 8877; N.C.L.1931-1941 Supp. § 9385.53; Rules of Civil
21
Procedure rule 59. Pagni v. City of Sparks, 1956, 293 P.2d 421, 72 Nev. 41. New Trial
22
163(1)
23
31. Scope of new trial grant
24
25 Where sublessors, suing sublessees-tenants holding over for possession, back rent and damages,
26 neither objected in trial court nor questioned on appeal instruction that jury was to determine
27
amount of damages suffered by sublessors because of sublessee's continued possession
28
- 71 -
985
1 if they found that sublease had been validly terminated, sublessors, in order to obtain additur,
2 had to demonstrate, that had such instruction been properly applied, it would have been
3
impossible for jury to reach conclusion that sublessors' damages were the amount awarded.
4
NRCP 59(a), (a)(5). Eikelberger v. Tolotti, 1978, 574 P.2d 277, 94 Nev. 58. New Trial
5
6
161(3)
7 32. Review--In general
8 Where evidence conflicted concerning exactly what happened in automobile accident case,
9
Supreme Court was required to review the evidence in light most consistent with the jury verdict
10
on appeal from grant of motion for new trial. Brascia v. Johnson, 1989, 781 P.2d 765, 105
11
Nev. 592. Appeal And Error 933(5)
12
13 Wife's motions for relief from judgment and for a new trial should be filed and heard in the
14 district court, which if inclined to grant relief should so certify to the Supreme Court, at which
15
point a request for remand of appeal from portions of divorce decree distributing property
16
would be appropriate. NRCP 59(a), 60(b). Huneycutt v. Huneycutt, 1978, 575 P.2d 585, 94
17
Nev. 79. Divorce 151
18
19 Where appellants did not specify and court was not able to find anything in record from which
20 it could conclude that it was clear that a wrong conclusion had been reached in judgment
21
which was sustained by substantial evidence, Supreme Court would not disturb judgment. NRCP
22
52(b), 59(e). Brechan v. Scott, 1976, 555 P.2d 1230, 92 Nev. 633. Appeal And Error
23
1010.1(6)
24
25 33. ---- Appealable orders, review
26 Although not separately appealable as a special order after judgment, an order denying a motion
27
to alter or amend judgment is reviewable for abuse of discretion on appeal from the underlying
28
- 72 -
986
1 judgment. AA Primo Builders, LLC v. Washington, 2010, 245 P.3d 1190. Appeal
2 and Error 113(5); Appeal and Error 876
3
Trial court's denial of petitioner's motions, requesting additional findings of fact and requesting
4
that the trial court alter or amend the order denying the post-conviction petition for writ of
5
6
habeas corpus, was not independently appealable. Klein v. Warden, 2002, 43 P.3d 1029, 118
7 Nev. 305. Habeas Corpus 814
8 Order captioned order declaring mistrial was an order granting a new trial, and, thus, appealable;
9
when order was issued, both verdicts had been returned and trial had been concluded and
10
order was issued subsequent to motion and hearing following conclusion of trial. Carlson v.
11
Locatelli, 1993, 849 P.2d 313, 109 Nev. 257. Appeal And Error 110; New Trial
12
13 163(1)
14 When a court which has lost jurisdiction of a case improperly grants leave to give notice of in-
15
tention to move for a new trial, and afterwards grants the new trial, it is sufficient to appeal
16
from the latter order only. Killip v. Empire Mill Co., 1866, 2 Nev. 34. Appeal And Error
17
110
18
19 34. ---- Timeliness of application, review
20 In absence of compliance with jurisdictional requirement for filing of notice of appeal within
21
time limited by rules, court cannot hear appeal on merits. NRCP 6(b), 59(b), 73(a). Culinary
22
and Hotel Service Workers Union, Local No. 226 v. Haugen, 1960, 357 P.2d 113, 76 Nev. 424
23
, certiorari dismissed 81 S.Ct. 1349, 366 U.S. 906, 6 L.Ed.2d 239. Appeal And Error
24
25 430(1)
26 35. ---- Notice of motion for appeal, review

27
Upon an appeal from a judgment by two of several defendants, notice of appeal need not be
28
- 73 -
987
1 served upon co-defendants as to whom the action was dismissed, over the objection of appellants,
2 before the judgment was rendered. Judgment (1899) 56 P. 231, 24 Nev. 422, affirmed.
3
Bliss v. Grayson, 1900, 59 P. 888, 25 Nev. 329. Appeal And Error 415
4
One of several defendants who has filed a motion for new trial, based upon the joint statement
5
6
of all the defendants, is not an adverse party, upon whom notice of appeal must be served on
7 appeal by his co-defendants from an order denying their motion for new trial, whether his separate
8 motion is sustained or denied. Judgment (1899) 56 P. 231, 24 Nev. 422, affirmed. Bliss
9
v. Grayson, 1900, 59 P. 888, 25 Nev. 329. Appeal And Error 414
10
36. ---- Scope of review
11
Employer's objection at trial in employee's action for breach of employment agreement, that
12
13 closing argument of employee's counsel implied that employer's counsel helped employer fabricate
14 employer's testimony, did not preserve appellate review of a claim that calling a witness
15
a liar was improper. Ringle v. Bruton, 2004, 86 P.3d 1032, 120 Nev. 82. Appeal And Error
16
232(.5)
17
Supreme Court could not review trial court's failure to award attorney fees where it had granted
18
19 motion for new trial and ruled that defendant's motion for costs and fees was thus defaulted.
20 Rules App.Proc., Rule 3A. Brascia v. Johnson, 1989, 781 P.2d 765, 105 Nev. 592. Appeal
21
And Error 177
22
Contention that opposing party's counsel erred in making certain argument to jury would not
23
be considered on appeal where objection to such argument was first raised in motion for new
24
25 trial. NRCP 59(a)(7). Southern Pac. Transp. Co. v. Fitzgerald, 1978, 577 P.2d 1234, 94 Nev.
26 241, rehearing denied 579 P.2d 1251, 94 Nev. 245. Appeal And Error 230
27
An exception to the general rule that when there is substantial evidence to sustain a judgment
28
- 74 -
988
1 it will not be disturbed obtains where, upon all the evidence, it is clear that a wrong conclusion
2 has been reached. NRCP 52(b), 59(e). Brechan v. Scott, 1976, 555 P.2d 1230, 92 Nev.
3
633. Appeal And Error 1010.1(6)
4
Under Acts 1869, § 195, subd. 6, and Id. § 197, as amended by Acts 1893, p. 89, providing
5
6
that, when the notice of an intention to move for a new trial designates as a ground the insufficiency
7 of the evidence, it shall be a sufficient assignment of error to specify that the verdict or
8 judgment is not supported by the evidence or is contrary to the evidence, the sufficiency of the
9
pleadings and errors appearing in the judgment roll may be considered on an appeal from an
10
order denying a new trial. Judgment (1899) 56 P. 231, 24 Nev. 422, affirmed. Bliss v.
11
Grayson, 1900, 59 P. 888, 25 Nev. 329. Appeal And Error 867(1)
12
13 The lower court is the sole judge of the credibility of testimony given in support of a motion
14 for a new trial on the ground of surprise. Sultan v. Sherwood, 1884, 5 P. 71, 18 Nev. 454. Appeal
15
And Error 994(3)
16
37. ---- Disposition, review
17
Supreme Court may uphold the grant of a new trial even if it is justified on a different ground
18
19 than the trial court found. Brascia v. Johnson, 1989, 781 P.2d 765, 105 Nev. 592. Appeal And
20 Error 856(5)
21
Supreme Court would reverse lower court's order granting motion for new trial where appellants
22
made prima facie showing on partial record that lower court erred in granting motion for
23
new trial, and respondent failed to designate any pertinent portions of trial transcript to rebut
24
25 this showing. Jaramillo v. Blackstone, 1985, 704 P.2d 1084, 101 Nev. 316. Appeal And Error
26 1015(1)
27
Trial court orders determining that stock, which was subject of option, had no real value on
28
- 75 -
989
1 stated day and releasing sureties on optionor's supersedeas bond were erroneous where, on
2 previous appeal, Supreme Court had determined that optionor had breached agreement and
3
had remanded for determination of market value, no new trial having been granted or sought.
4
NRCP 59(a). Bromberg v. Finnell, 1964, 391 P.2d 31, 80 Nev. 189, certiorari denied 85 S.Ct.
5
6
700, 379 U.S. 988, 13 L.Ed.2d 610. Appeal And Error 1212(4)
7 44. Nunc pro tunc orders
8 Wife's marriage to her second husband was void because she was still married to her first husband
9
when she participated in a marriage ceremony with second husband, and, since nunc pro
10
tunc order could only reflect that which was actually done, trial court could not modify the divorce
11
decree in the first marriage by nunc pro tunc entry of the divorce decree to a day before
12
13 the second marriage for the purpose of legitimizing the otherwise void second marriage;
14 court's decision to approve petition for divorce was not equivalent to the exercise of a clerical
15
duty that the court could later amend at its discretion. McClintock v. McClintock, 2006, 138
16
P.3d 513, 122 Nev. 842. Divorce 163; Marriage 11
17
Civ. Proc. Rules, RULE 59, NV ST RCP RULE 59
18
19 Appellants incorporates by reference all arguments, filings, correspondence etc made in the
20 trial court or so far in this appeal, especially those in the Opposition to Motion to Dismiss.
21
22 ` The 2008 Limited Court Jurisdiction Bench Book and its 2010 Supplement set forth a
number of appealable issues in this matter, including:
23 SUMMARY PUNISHMENT Summary punishment is only permissible for direct contempts (those
24
Questions to analyze for Summary Punishment • Is the contempt eligible for summary
25 punishment? ? Act or omission performed in presence of Court ? Immediate judicial action was
required to maintain or restore authority/justice/dignity of the Court ? Was there an order that
26 spelled out the details of compliance in clear, specific and unambiguous terms so that the person
should have readily known exactly what duties or obligations were imposed on him? ? Is the
27
contempt on in which the person has omitted performing an act which is yet in the power of the
28 person to perform? • What type of contempt exists? ? Civil in which punishment is appropriate? ?
- 76 -
990
1 Civil in which imprisonment to force performance is appropriate? ? Criminal in which adjudication
of a misdemeanor is appropriate? • What is the sentence imposed? ? Imprisonment in county jail
2 not to exceed 25 days ? Fine not to exceed $500 (payable to county/city treasurer) ? Both above
3
mentioned fine and imprisonment ? If civil , expenses, including attorney fees, of injured party if the
contempt involves disobedience to a lawful order or writ ? Is the contempt one that involves failure
4 to do an act which is yet in the power of the person to perform? If so, is imprisonment in the county
jail necessary or appropriate to force the person to comply with the act? ? Is the contempt failure to
5 appear or testify before a grand jury? If so, imprisonment must cease when the grand jury is no
6
longer empanelled. • Have you completed the written order? (Must have a written order filed) ?
7 judge; ? Finds the person guilty of the contempt; and ? Prescribes the punishment for the contemp
8 CONCLUSION
9
Based upon the foregoing the undersigned respectfully requests that this Court vacate,
10
overturn, or otherwise set aside the underlying Judgment and Order of Conviction in this matter
11
(RMC 11 CR 22176). Appellant Declares under penalty of perjury, pursuant to NRS 53.045, that the
12

15
16
17
18
Dated: March 26, 2012
19

21
22
23
24
25
26
27
28
- 77 -
991
1 PROOF OF SERVICE
2 Pursuant to NRCP 5(b), I certify that I served a copy of the foregoing document upon the
3
following party by electronically filing on this date and therefore serving upon registered efiler:
4 Pamela Roberts, Esq.

Reno City Attorney's Office - Criminal Divison
5 P.O. Box 1900 Reno , NV 89505
6
Tel: 775-334-2050
Fax: 775-334-2420
7 robertsp@reno.gov
Attorney for City of Reno
8
9
Date this March 26, 2012:
10

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- 78 -
992
FILED
Electronically
03-27-2012:02:55:59 PM
Clerk of the Court
993
994
995
996

8 13 13 996 Pages Bates Stamped Ex 2 Ocr For 60838 62337 ROA From RMC in 22176 To 2JDC For CR12 - 2064 and Everything Filed in Appeal Through 3 27 12

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8 13 13 996 Pages Bates Stamped Ex 2 Ocr For 60838 62337 ROA From RMC in 22176 To 2JDC For CR12 - 2064 and Everything Filed in Appeal Through 3 27 12

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Code 1180

IN THE SECOND JUDICIAL DISTRICT COURT OF THE STATE NEVADA

5 IN AND FOR THE COUNTY OF WASHOE

6 ZACHARY BARKER COUGHLIN,

8 v, RMC Case No.IICR22176

9 CITY OF RENO, Dept. No.4

CERTIFIED COPY OF DOCKET

October 18,2011: Notice of Availability of Discovery and Request for Reciprocal

October 27,2011: Order Denying Appointment of Legal Defender.

OR WAIVER OF COURT FEES AND COSTS.

December 16, 2011: Defendant Coughlin's Supplemental To Notice of Appeal,

December 19,2011: Defendant Coughlin's Notice of Denial of Service; Opposition

OR WAIVER OF COURT FEES AND COST.

2 I, CASSANDRA JACKSON, Interim Court Administrator of the Reno Municipal

10 SUBSCRIBED AND SWORN BEFORE ME

Federal Express or other overnight delivery.

..,/ Inner-office mail following ordinary business practices.

Reno, Nevada 89509 Reno, Nevada 89501

Dated this day of December, 2011.

P.O. 80. 19110

4 IN THE MUNICIPAL COURT OFTHE CITY � D'�%�"

5 COUNTYOFWASHOE,STATE OFNEVADA De, II

16 ( ) comply with the No Contact Order

17 ( ) comply with all Counseling requirements

18 ( ) comply with the Parenting Class requirement

21 ( ) violent nature/seriousness of the instant offense

26 ( ) other : ---+_ ,!J

:l.2@daYOf �"'1� , 2011

CITY OF RENO, PLAINTIFF

DEFENDANT: COUGHLIN, ZACHARY BARKER

Additional Fees 40.00 40.00 o

SupervisIon Fee Subtotal: Supv Fee(s) Due:

DEFENDANT:-COUGHLlN, ZACHARY BA'

'\\!" � "''\t-iCf' U i-< v..-,I"j

-Al,COHOL AND DRUG FRE !j;) 0'\0+

OBEY ALL LAWS,

THE HONORABLE WILLIAM GARDNER // "'.if'. A

I UNDERSTAND AND PROMISE TO OBEY THIS ORDER. DEFENDANT,:'

I, THE SWORN INTPRETER HAVE FULLY INTERPRETED THIS ORDEVTo

RECEIVED BY DEPUTY: -E'____----------DATE:, ---- TIME:

ISSUED BY MARSHAL: DATE:! l) I J.() J 1/ TIME:

7 Plaintiff, NOTICE OF AVAILABILITY OF

24 Deputy City Attorney

26 Nevada 89501 on October �011.

Rcno City Attorncy

RENO MUNICIPAL COURT

If yes, please specify

Si la respuesta es afirmativa, especifique '

2. Are you currently serving a sentence in a jail or prison? Vest 1 No f.{

If yes, list charges, case numbers and time to serve.

3. How many people are in your household (live with you)?

15 and having been reviewed by this Court, therefore;

17 charge, the standard sentence carries no jail time.

2 Pursuant to NRCP 5 (b) , I certify that I am an employee of the

x Placing said document in a sealed envelope placed for

Zach Coughlin, Esq.

STATE OF NEVADA IN AND FOR

THE COUNTY OF WASHOE

14 ZACHARY BARKER COUGHLIN

NOTICE OF APPEARANCE: MOTION FOR CONTINUANCE

Reno Municipal Court rules

NOTICE OF APPEARANCE; MOTION FOR CONTINUANCE

NOTICE OF APPEARANCE; MOTION FOR CONTINUANCE

in 7, the court dismissed the complaint or did not impose punishment;