Professional Documents
Culture Documents
14-2988
UNITED STATES COURTS OF APPEALS
FOR THE SECOND CIRCUIT
Fritz G. Blumenberg,
Defendant Appellant.
------------------------------------------------On Appeal from an evasive order by the U.S. District Court for the
Southern District of New York 01-cr-00571 (JGK)
2
Introduction
There is a famous proverb that those who forget the past are condemned to repeat
it. This saying has great significance in a case like this which involves a prejudicial
overdose, official fraudulence, and chronic docket doctoring that resulted in massive
discrimination against two aliens who were unconstitutionally prejudiced, deprived of
liberty, branded felons and deported for no reason.
These official acts must be seen in light of unfortunate history of discrimination
against non-citizens and hyphenated-Americans (Pres. Roosevelt).
There is such a thing as due process of law! Associate Justice A. Scalia
reminded the Federal Judiciary on January 21, 2014. Lets see Appellees BRIEF.
Summary - Background
A first inspection of the AFFIRMATION [sic] reveals affirmants blaring [this
time] not untruthful avouchment on 2: 3. Indictment S1 01 cr. 571 (JGK) was
filed on February 14, 2002, in five counts. [Bolding, underline added].
An overt crack at circumnavigating candor and the true inaugural procedural [bill]
history, which, to date, was willfully, knowingly and consistently misrepresented at each
level and to each Circuit Panel in each of multiple appellate proceedings by Appellant
and by his remaining Co-Defendant Viertel.
The governments en-passant generic sounding, semi-official deceit was foul
and perpetual in a variety of text-versions - as follows: The Original Indictment
against Blumenberg, Lee and Viertel was filed on June 14, 2001.
Absolutely, positively falsified.
3
The sole true FILING of a [signed] INDICTMENT bill occurred June 19, 2001, and was
filed in absence of a SEAL. On that day, unsurprisingly, case 01 cr. 571 (JGK) was in
fact OPEN. JUDGE KOELTL assigned, vel non,1 by a rubberstamp.
The novel AFFIRMATION language (supra) is an approach by not echoing
under oath those calendaring lies told a few dozen times before it. Proctrix Cohens
strategy thus evolved into affirmative damage-control. Proctrix tries to ditch the 600
pound gorilla at bar.
It took a 5 day ruse to maliciously inculpate for expired innocent acts
The novel practice wont expunge old misrepresentations, but it very well coministers as intrinsic CONFIRMATION of the solid date-line position both alien
defendants sustain in that USAs pre-inaugural June 14, 2001 delusion was just that, an
artifice. Facts are that Grand Jurors had not voluntarily concurred to play fast and loose
with prosecutors supposition neither on June 14, 2001 nor during 4 ensuing days.
Through a blatant backdate-lie, the United States recklessly heaped disgrace upon
Grand Jurors, a clear demonstration of arrogance and disrespect for what is hyped as its
own citizens oversight powers. Henceforth, Grand Jurors must take notice that the
Federal Government must face Grand Juries they get, not those they wish to get!
This pro se Defendant-Appellant presented, however inartfully, these issues to the
District and the District went into instant denial straying beyond the edges of strict rules,
including Haines v. Kerner2s playbook judges must follow once a genuine verifiable or
1
In fact, learned clerks pointed out that this Judge was shopped by half (a CA2 issue in U.S.
v. Newman), and freely jumped NYSDs criminal wheel cloaked, clutching his gavel.
Haines v. Kerner, 404 U.S. 519, 520, 92 S. Ct. 594, 595, 30 L.Ed.2d 652 (1972) (per curiam)
(allegations of pro se complaint are held to less stringent standard than formal pleading
drafted by lawyers, when court considers a motion to dismiss).
2
4
jurisdictional claim appears to have been made, even out of procedure, out of order or
time, or recuse once a judge has weighty personal scienter for participating in the
derailment of the Constitution. This Appeal followed.
Highest professional standards are missing
The alteration in procedural history selections for proctrix AFFIRMATION
demonstrate aggressiveness, a culture of deception to stay a winner at all costs, and
reveals how much [undeserved] deference courts ensign for determinations that should be
more blindly analyzed and adjudicated. The DOJ requires federal prosecutors to
conduct themselves in a manner consistent with the highest professional standards when
they represent the U.S.: in 01 cr.571 they failed to uphold these standards.
USA after USA pushed the envelope, most likely enabled by Appellants noncombative defender having Appellant cooperate and plead guilty [A.713, more generic
than legally firm] despite what - at least on hindsight - seems to have been serious
questions of legal sufficiency, jurisdictional grounds and over intentionally fraudulent
professional misconduct.
Now that reservoir of respect hopefully shriveled to under nano-size. An
extraneous Magistrates un-sealing of a hoax [Br. 16] was less sorcery and more
villainous, till his own un-seal & lies collapsed last year [about the time NYSDs
Melanie L Lopez-ink-swindle popped].
Now time has arrived to capitulate, that even an unelected United States actor
cannot make proof un-microfilmed, stamps un-inked, FUGITIVES un-branded, or,
5
twist phantom Melanie L Lopez into Deputy Real McCoy sworn to sign Arrest
warrants void of a judicial Order.
Appellants Affidavit of Fact follows this OPPOSITION.
Argument
This is a timely4 submitted OPPOSITION5 to a frivolous 8-page
AFFIRMATION in lack of [DOJ mandated] necessity of authorization by the United
States Attorney for the SDNY [P. S. Bharara] for any legal Motion.
Appellants opposition rests upon three prongs, the first prong over procedural
objections, untimeliness et al; the second prong objecting to merit [or rather lack of
merit] the government posits and which must be deemed yet another quintessential
foul6 attempt in furtherance of a continuous cover-up of what official actors planned
and operated as an Enterprise of backdating and docket doctoring; the tertial prong being
a Cross-Motion [upon Appellees straight failure to timely file its calendared BRIEF by
04/15/2015, in lieu of a written local rule that would grant a self-reset of a BRIEFING
deadline grounded on [too slick of a] motion practice, and cross-moving for SUMMARY
REVERSAL of ORDER and CONVICTION, EXCULPATION and VACATUR
INDICTMENT[s] for good cause, or, in case the Panel rules to expand Appellees
(B) Request for affirmative relief. A response may include a motion for affirmative relief. The
time to respond to the new motion, and to reply to that response, are governed by Rule
27(a)(3)(A) and (a)(4). The title of the response must alert the court to the request for relief.
Anno 1935, when Justice Sutherland, in Berger v. U.S., held that prosecutors commit foul
strikes and are not licensed to lie nor promote lies of others
6
6
expired BRIEF deadline ex-post-facto, any such gifted time be less than 30 extra days, in
the interest of speedy justice vs. more wiggle room.
1. The First Prong.
a) Courts are prudently - loath to entertain late-filed motions for summary
disposition that abuse the judicial process or waste the courts resources.
For example, in United States v. Fortner [455 F.3d at 752,53,54], the 7th
Circuit warned litigants against using motions for summary disposition
We now explain why the government's litigation strategyfiling a
motion for summary affirmance days before its merits brief was dueis
problematic.7 "The strategy is this: instead of filing a brief on the due
date, the appellee files something else, such as a motion to dismiss. The
goal and often the effect is to obtain a self-help extension of time even
though the court would be unlikely to grant an extension if one were
requested openly."United States v. Lloyd, 398 F.3d 978, 980 (CA7
2005); see also Ramos v. Ashcroft, 371 F.3d 948, 949-50 (CA7 2004). As
we held in Lloyd and Ramos, a last-minute motion, if necessary, should
be filed along with a timely brief, not in place of it.8
The CA7 subsequently clarified its position, limiting Fortner to "last-minute" summary
disposition motions, and not those that were filed "well before the appellant's brief was
due." Dupuy v. McEwen, 495 F.3d 807, 808 (CA7 2007).
7
Circuit law; see U.S. v. Davis, 598 F.3d 10, 13, 14 n. 3(CA2 2010). The
AFFIRMATION was jotted down less than 8 days before the due date
of USAs merits BRIEF [DOC#409, now deemed expired upon no-good
cause]. The 11th-hour maneuver is unlikely to streamline this appeal but
rather to squander Circuit resources. The Motion AFFIRMATION
was an artifice to short-circuit appellate process, was not taken in good
faith and must fail if not because "lady doth protest too much,
methinks"10.
c)
d)
10
40
8
PSR authors]. In lieu of that verifiable, bona-fide victim declaration
[there is none] the District sought reliance upon an extrinsic pseudo
RICO proceeding [97-7167 RWS now CA2 14-2815]. All that maybe
PAR for a District Court, but in a fair supervisory REVIEW and for the
public interest, it must dissolve.
e)
f)
9
U.S. v. Davis, 598 F.3d 10, 13, 14 n.3 (CA2 2010) is on target in stating
"[T]he unique importance of criminal appeals makes the decision to
characterize one as frivolous particularly perilous," requiring "extreme
care" before "short-circuit[ing]" the appellate process.
h) Appellant submits, that the government failed on unclean hands and
must face consequences for its misconduct while its own affirmant is bar
of standing to move this Court in such manner.
2. The Second Prong.
A suitable, duly authorized USANYS MOTION for Summary affirmance
was not filed; DOC#50 [below] simply labels an 8-page AFFIRMATION
authored by a known revisionist [if not an ethically11 challenged] AUSA in
support of an [AWOL] motion we cant find. Snail-mail to Germany is not
considered HONEST SERVICE, and has not yet arrived.
From the entry12 below, it appears that a real MOTION was filed, but is not
available online. Hyperlink 50 is simply an AFFIRMATION in which the
government posits that Appellant lacks jurisdiction to reach out to the Second
Circuit because the bulk of defendant-appellant Fritz Blumenbergs claims is
12
04/08/2015
50
10
arrogantly classified by the government as incongruent to unrelated issues denied
by the District Order dated 08/06/2015.
However, such incongruence between the Districts instant DENIAL and
Appellants issues raised below on 08/05/2015 in his pro-se-MOTION does not
exist13, and does not impugn appellate jurisdiction.
The governments effort to rig confusion is superficial since Appellant
also filed an Appendix; the original District Motion is on A.32. Appeal was taken
from an unsigned ORDER dated August 6, 2014 (A. 29, 30] and shuns many
duly presented and weighty and jurisdictional claims, also for the release of
pertinent [June 2001] Grand Jury records to fold open hidden cards14 covered by
the Confrontation clause.
A party has permission to raise jurisdiction at any time15, see (Br.11, ii))
Where jurisdiction is challenged it must be proved. Hagan vs. Lavine, 415 U.S.
528 (1974). If a District defaults thus moon-walks out with willful blindness to
steer clear of jurisdictional hurdles [presumed a protective move to hold onto his
own reputation and shield his accomplices at branch II and III] issues are not
13
Except for the IRS demand below: However, IRS Frankfurt is now in compliance with
Appellants SEIZE and DESIST demand dated 04/01/2012 after the issue was raised August
2014 below, and collection issues are currently moot, also since IRS failed to substantiate its
calculations and claim vs. BURDAs facts and my net income truthfully declared for 95/96.
14
15
US V. COTTON (01-687) 535 U.S. 625 (2002): Because subject-matter jurisdiction involves
a courts power to hear a case, it can never be forfeited or waived. Thus, defects require
correction regardless of whether the error was raised in district court. See also: Without
jurisdiction the court cannot proceed at all in any cause. Jurisdiction is power to declare the
law, and when it ceases to exist, the only function remaining to the court is that of announcing
the fact and dismissing the cause. (Exparte McCardle, 7 Wall.506,514 (1869)).
11
discharged, nor are they barred. The AUSA AFFIRMATION misses all points
and fails.
To wit:
i.)
ii.)
Which are these genuine jurisdictional issues the District strives to avoid?
iii.)
12
have unhinged the INDICTMENTs altogether, to fairly match
Lees nolle prosequi.[A.52-53]
iv.)
13
v.)
Fortunately now for Appellant (as for Mr. Viertel) both overt acts
charged for 17 June and 18 June 1996 were not only bogus and
innocent, they expired by the time the INDICTMENT was filed on
06/19/2001 see PACER headliner. Unfortunately for both that it
took 13 years to cut through malfeasance at the Courthouse.
vi.)
14
Summary Reversal may also be appropriate in extremely rare cases where
there has been a clear denial of constitutional rights without a reasoned decision from
the court below. 9th Cir. R. 3-6 (Summary reversal may be granted where an
intervening court decision or recent legislation requires reversal or vacation of the
judgment or order appealed from or a remand for additional proceedings.). Q.E.D.
If Domina Iustizia were truly blind, than every trespassing prosecutor must be in
constant fear of getting snagged and shackled or, Justice cannot be done. Anno Domini
MXMXXXV when Judge Sutherland, in Berger v. US, held that prosecutors are neither
licensed to lie nor to cause proxies to swindle on their behalves (see Magistrate HBP on
DOC#2 for a glaring example of such swindle) because such conduct is prohibited,
considered foul strikes and, as Appellant suggests, piled up huge societal debt the
United States must take responsibility and repay those who were violated by their actors
malicious conduct.
It is reasonable that GJ minutes shall be ordered opened for transparency (also in
view of another DOJ Injustice scandal this week) because letting DOJ/FBI getting
away with grand jury grandstanding and misconduct prejudicial to their targets results in
abuse of judicial process.
Now, the government affirmant request an alternative [ 8, FN 4]: In the event
that the motion is denied, the Government respectfully requests that it be afforded a full
91-day period to prepare and file its brief on the merits.
That is a non-sequitur; the government fails to explain why they would need to
double dip and research for another 91 days, if their appellate jurisdiction argument could
have been timely made in a merits brief. FRAP Local Rule 27.1 stands in the way:
(f) Motion to Extend the Time to File a Brief.
15
(1) Extraordinary Circumstance Required. Absent an extraordinary
circumstance, such as serious personal illness or death in counsel's immediate
family, the court will not grant a motion to extend the time to file a brief. A deadline
for a brief remains in effect unless the court orders otherwise.
16
Appellants Affidavit in
Support of Opposition to
Affirmation for Summary
Affirmance, or for 91 extra
days of underserved time
--------------------------------------------------------I, Fritz G. Blumenberg swear this Affidavit under Title 28 U.S.C. 1746 under
penalty of perjury without the United States in Hamburg, Germany and sayeth:
i) Up until about 09:30 A.M. on 06/19/2001, AUSAs and their Supervisors
[reporting to USA White], struggled to deliver CPR to what they labeled as
key conspiratorial overt acts on June 17 &18 1996. These two pseudo-acts
were fictional, illogically and untenable but somehow could be deemed
probable. These two rapidly expiring pseudo-acts17 were bread & butter for the
governments illicit prosecution, and required tolling at any price, no matter
the Constitutions Due Process Clause.
ii) The tolling could not be stopped. The acts of 17/18th June 1996 expired.
iii) A fiction over timely Grand Juror consent was created by USA.
iv) Contrary to myriad false government representations, consciously bogus
assertions, fake FUGITIVE labeling, tolling did not stop until the
INDICTMENT was filed on 06/19/2001.
17
In 03-1364 USA Kelley, AUSAs Cohen and Neiman put it as a clear misrepresentation to
Second Circuit, see at this link http://bit.ly/1yR0FZl
17
v) The United States resorted to bad faith CPR delivery on 06/14/2001 as a
result of Grand Jurors not rushing to conclusions on dicey probability and
because AUSA Mark Harris pushed his FBI witness-1 into a lie about a time
line of what became GX 501. Jurors instinctive reluctance to readily consent
Foreman Rehm is said to not recalling an advisory over two looming acts
expiry during a debriefing to a speedy conclusion just to avoid expiry of 5
year old overt pseudo-acts18 that the government spun for the jurors.
(Presider K steadfastly refused for 14 years to release June 2001 GJ
records, another point raised below and on instant Appeal for judicial bias an
abuse)
vi) The governments CPR procedures also featured an interstate back-upscenario for 06/15/2001, which, inter alia mensis rea, consisted of unlawfully
branding the 3 targets as FUGITIVE[s] (A. 49, 50, see Cross-Motion
Exhibit I 4,5 intra, for explanation), and interstate FBI transmission of three
fake arrest warrants plus an unsigned, un-returned, unfiled, unsealed
INDICTMENT draft, sent as bogus proof to several FBI residencies that day.
Arrogance has no limits.
vii) The government continues to pretend that the circumstances surrounding
Appellants false INDICTMENT backdate were legit. They were not. They
were Grandstanding, malicious dishonesty, lack of candor and not an act in
the public interest. Prosecutor after prosecutor gambled and gambled with
loaded dice, until their dice now melted.
viii) The USA misrepresented factoids as if a real INDICTMENT had been
returned by Grand Jury in the SDNY on 06/14/2001. In furtherance of their
18
Both fabricated acts (17/18th June 1996) were debunked as pseudo and untenable (A. 41)
18
official perchance un-American - ruse, three drafts A/Warrants were
counterfeit by AUSA Mark Harris, each contaminated with ink from a bogus
signature stamp19 (A. 42, FN7) [prosecutors had purloined earlier from Chief
Clerk J. Parkison20]. This issue is on instant Appeal under the Constitutions
Confrontation clause providing that a requested Warrant must be held for
post-arrest inspection and verification and may not be concealed by an
impartial District Judge who should according to ethic rules not have his
own dog in the fight. [Co-defs Viertels fake A/W was recovered from FLSD]
ix) On 06/19/2001 the USA galvanized Judge Pitman to forge their alibi [DOC#2]
x) June 19, 2001 was a straightforward inauguration day of o1 cr. 571.
xi) Furthermore, a legitimate Magistrate mj Case was not opened in the SDNY
against Affiant or Lee, Viertel. Case 01-cr-571 was OPENED on June 19,
2001, evidenced by PACERs uncorrupted Docket Record on undisputable
INDEX entry, facts the government can no longer controvert. Nota bene, that
the government thus far shunned to furnish a shred of stressable documentary
proof from the Districts or Magistrates certifiable Calendar, no tape nor
transcription, that they had entered, GJ-Foreman Rehm in tow, an OPEN
COURT room door on 06/14/2001, and fortuitously applied for FILING and
were either granted or not a SEAL in lieu of a duly SIGNED indictment
[Foremans & USA Whites ], because all they possessed up until 06/19/2001
19
Melanie L. Lopez was a phantom, a fiction not deputized to stamp Arrest Warrants on
Who, upon information and belief, collected illusory signatures stamps of fictive clerks
19
was a blank draft proposal, a copy they had faxed around in vain and bad faith
in lieu of a real one. In fact, Appellant refers the Court to Exhibit 1 [intra21].
xii) On 06/19/2001 the firstever CASE v. Blumenberg [Affiant] was
inaugurated, opened and filed for its firstever time22 (A. 40) rendering
prosecutorial struggles to re-design tolling for not yet time-barred 371
jurisdiction, null and void, and, yes, ultra vires at absolutum.
xiii) On 06/19/2001 the government set up for backwards bogus docket entries
(A. 34) after the USAO elicited certified, albeit patently false judicial grade
testimony (Br. 16 see DOC#2) in which their robed witness prevaricated
about a 5-day earlier albeit fictitious- FILE & SEAL [A.34) he had
witnessed somehow, despite his absence from the Courthouse. (Affiants
Defender Phil Weinstein was ineffective in failing to review of DOC#2s
significance for my defense. Lee, instead, hired exquisite sharp-shooting
Esquires, Appellant and Viertel were handled ineffectively by what might as
well have been double agents. Weinstein to date refuses to whistle-blow over
this prima facie, more-than-leery judicial document accessible to him as
defender (but not scanned on Pacer), despite a heavily tortured false PACER
entry #2, SDNY clerk (jm) mis-phrased for what he should have known to be
highly dubious goodfellas, A.34 screenshot )
xiv) Affiant did not have a copy of DOC#2 until spring of 2014
xv)
Zabel and obtained exculpatory nolle on the heels of his open threat to seek
21
In fact, Appellant refers the Panel to an email Exhibit 1 (with permission of author Viertel), in
which Viertel points out and underlines several issues raised.
22
Albeit purposefully designed to not upset their prior ruse - not in OPEN COURT but by
USA staffer deposit through SDNYs window to circumnavigate a conflict in the fake record the
government built with sophistication and brazen abuse of judicial process and Constitution.
20
Grand Jury Records in re dubious prosecutorial conduct before it (A. 52-53;
see Ex. I 3 screenshot from an akingump Benjamin/Zabel Motion).
xvi) Such Grand Juror records were the governments Achilles heel.
xvii) Hitherto, government actors, who sought to keep at least two badly lawyered
aliens on their crooked hook, employed atrocious force, boundless deception
and vast misrepresentations to avoid their detection. They arrogantly violated
the United States Constitution, Napue v. Il. (360 U.S. 264), Brady v. Md. (373
U.S: 83) and met the foulness-standard of Berger (295 U.S. 78), ad
infinitum.
xviii)
hyped Grand Jury System, a promotional ruse, as if, hypothetically, a Grand Jury
shields some targets from authoritarian overreach, is of mind-blowing dimension.
[but so was this weeks FBI Forensic scandal structured to deceive the bench]
xx)
This case is also of First Impression and shall serve the Circuit as an
21
xxi)
to prove that a strained justice system can work in the end and that losers can
turn winners, when stacked cards are revealed.
k)
meritless and must be stricken. Appellants unlawful 07:00 A.M. arrest and
shackled transport over the George Washington Bridge from another district (NJ)
was without consent, and without a warrant, because a proper warrant could not lay
at that early hour on 06/19/2001.
Further Affiant Sayeth Naught.
Certified on this 22 April 2015 in Hamburg, Germany
22
Certificate of Service
Fritz G Blumenberg deposes and says that on this day he served copy of his Opposition
and Cross-Motion, his Affidavit and Exhibit I by PDF file upon:
Preetinder Sahib Bharara by email preet.bharara@usdoj.gov
Michael Levy by email michael.levy@usdoj.gov
Case Manager Anna Greenridge by email anna_greenidge@ca2.uscourts.gov
Movant Christian Viertel by email viertel2020@aol.com
And prosecases@ca2.uscourts.gov
Crying Wolf once too often, WHERE IS THE REAL MOTION ? I only ...
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Subject: Crying Wolf once too o en, WHERE IS THE REAL MOTION ? I only have her arma"on.
From: "Prof.C Viertel" <viertel2020@aol.com>
Date: 22.04.2015 18:59
To: "Fritz G. Blumenberg" <fritzblu@aol.de>, funaro.juris@fondapio.org
Fritz,
I received Wednesday's USANYS "Hail Mary Affirmation"
without a MOTION. Apparently penned to - deja vue short-circuit (pun intended) due process with
procedural trickery.
"They" probably yearn to target another favorable
ex-prosecutor panel which could rubber stamp
the bejesus out of the RULE OF LAW and leaving the
cards stacked.
"We" have to hope for at least two honorable panelists
from the "Kozinski-School-Of-Justice"
who are unafraid of Preet Bharara's scorn.
1) Please remember that the Grand Juror Form AO 190
must be on record but has been kept from us
and our attorneys eyes. And this completed FORM will,
if not counterfeit, will demonstrate our
backdating charge once moreover.
22.04.2015 18:59
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Crying Wolf once too often, WHERE IS THE REAL MOTION ? I only ...
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