11-3300 cr

United States Court of Appeals

for the

Second Circuit

UNITED STATES OF AMERICA,
Appellee v.

FRITZ GERHARD BLUMENBERG,

Defendant-Appellant, pro se

Appeal from the United States District Court for the Southern District of New York [Case Nr. S1: 01-cr-571]

========================================= BRIEF for the Defendant - Appellant

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TABLE OF CONTENTS TABLE OF CONTENTS PRELIMINARY STATEMENT PRO SE STATEMENT ARGUMENT 1 ARGUMENT 2 ARGUMENT 2 ARGUMENT 3 2 3 7 8 11 15 17

Lack of jurisdiction in a federal court over the subject matter of the litigation cannot be waived by the parties. The court should decline to proceed with the cause. US vs Corrick. 298 U. S. 436 (1936). If the record discloses that the lower court was without jurisdiction, this Court will notice the defect although the parties make no contention concerning it. [at 440] This Court has jurisdiction on appeal to correct the error of a District Court in entertaining a suit over which it had no jurisdiction. Id. CONCLUSION CERTIFICATION 28 U.S.C. 1746 (1) 21 21

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Preliminary Statement This is a pro se Appeal of two disputed sequential Orders the District Court (JGK) was timely noticed for Appeal [see: 11-3300 Case Documents 1-2-3-4 herein, Appendices I and J are Defendants submissions in Original] based upon verified claims, that were denied and are hereby disputed for serial abuse of judicial discretion under strong appearance of impartiality, at best. This pro se Appeal also challenges the initial JURISDICTION, inter alia, and similarly fundamental issues arising from erroneous and unlawful official conduct while some are ultra vires acts. Furthermore, on June 8, 2009 Appellant filed a WRIT OF AUDITA QUERELA [Appendix E], brushed off by the District Court on hardly any non-predilective grounds fellowship of a partisanship pattern and by wrongly and swiftly re-coloring of a post-conviction WRIT of ERROR motion as a prisoner application. The AUDITA QUERALAs arguments are fully incorporated in this Appeal because no valid decision was rendered and on other grounds: the District Court administratively botched my timely NOA entry to a invalid decision(supra), but one year and many interventions later, it ordered nunc pro tunc - that the NOA be recorded as timely as it was. This Court regrettably decreed sua sponte that the Districts timeliness ORDER and the controversy on APPEAL shall suffer from sudden infant death in 10-4777 pr [in a PAID-FOR-JUSTICE proceeding - as my IFP was as botched as my [pr] status]. In 10: 4777 pr the District, upon my Motion to rectify the error above, claimed incapacitation even though closenessby designations as a fractional peer are not infrequent. The [pr] designator violated Kaminsky vs U.S., 339 F.3d 84, 91 (2d 2003) since no MOVANT [living in Germany and freedom] may be relabeled or mistreated as if confined for the underlying proceeding.

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This designation is a highly abusive but popular scheme to run on inapplicable progovernment 2255 rules to divert the ends of justice. These relabeling diversions are rampant, impermissible and shall now be rectified pursuant to the applicable standards for WRITS OF ERRORS by persons in liberty. Appellants direct Original SUBMISSION and REPLY (Appendices I and J ) consist of two complex basic issues at bar, a Mandatory Notice of Satisfactory Restitution compliance before Sentencing1 for Correction [1) below] and a Motion for an Order to Show Cause [2) below]: 1) The restitution issue arose during plea and again before sentencing and was deliberately tossed aside by a Court who had scienter that its Restitution Sentencing Order would be materially false, rewarding a fictitious victim (BMI), and unsupported by corporate facts the Court wanted to dodge to save the government from defeat. The ORDER was also unsupported by the Courts own SDNY probation department and was in serial violation of 3663 absurdly permitting the government to shun its burden of proof of loss amount under 3663 A (e) that was disputed by the defendant as fully refunded since 1998. The Court went into special judicial cover up sheltering the prosecution from Brady consequences the Court knew existed, if only from 100 pages of Motion-practice by Codefendant Lee. Judicial abuse was complete when loss calculations under a mandatory sentencing scheme causes tortuous loss of liberty. Appellant submits that funds beneficially owned by BMI were withdrawn with my authority but incorrectly supported by many bogus payment vouchers (invoices, proformas) that Burda Media and this CEO approved and paid. The 1998 real settlement (Appendix C) recognized the amount [$1,129k] Appellant owed his German employer BURDA GmbH per demission date 9-July-

Appendix A : Southern District Sentencing Reporters (212) Tr. #245UBLUP, Page 55, 56, ff
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96, whereby BURDA GmbH held 100% of Burda Media NY capital. These civil obligations had been substantially refunded and materially satisfied before June 2001 [eleventh-hour indictment]. Germanys Mission recorded the cloture June-5-1998 for filing at the Berlin Charlottenburg Courthouse [where German non-resident garnishments register]. The SENTENCE calculation on REFUNDED amounts that a FBI-faked victim2 never claimed and certainly no longer claimed, was judicial abuse. The Court curried favor with the executive branch and its vendor: The BOP stepping upon Appellants basic rights and legal position, which FD Weinstein was utterly incompetent [and much too fearful] to protect. Appellant submits that the Courts myriad dilatory maneuvers on Restitution finally resulted 12-23-2011 in a pusillanimous hand endorsement that ordered Restitution satisfied [DE 268]. The Courts circumnavigation of Appellants reasonable claims and affirmations since 2003 added insult by scrawled endorsement on plaintiffs letterhead, as if an eight plus years post-maturity doodle could divert accountability for serious misconduct, dogging , diverting and deliberately procrastinating an outcome that invalidated and vacated the grave sentencing error. In furtherance, the Court attempts to still dodge sanctionable but unsanctioned government acts of moral turpitude submissions which avoided judicial orders and in contempt obstruction of justice by means of continued deception, diversion and by causing low-in-the-DOJ-food-chain sub alternates3 to file perjured statements. The government still went further by puppeteering a predilection-prone magistragic enabler (MJ.Pittman was up for Appendix K demonstrates the FBIs deceptions over a fake victim (to fabricate locus delictis on Manhattan Island), and FBIs insanity over a fugitive harboring baloney made from whole cloth.
3
2

Sworn by dispensable FLU (Financial Litigation Unit) staff, US attorney Garcia awarded honors upon
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renewal4 of his term) to hammer out a bogus R&R. These issues, however, are not being directly appealed here and now, as the appellant received material vindication of restitutional finality at last, albeit with manifest injustices bitter taste from absurd behavior by those sworn to speedy process and unbiased comportment. Appellant submits, that this recorded pattern of official misconduct5 below be ordered for professional review and for judicial [de novo] review and whether sanctions, or maybe professional treatment are warranted by the results.

2) My May-15- 2011 Submissions was labeled Mandatory Court Notice and Motion for an Order to Show Cause indicates that REVIEW of miscarriage of justice, prosecutorial malpractice and rigged procedures are on recorded between the bench and row ONE who colluded repeatedly against this defendant-appellant, against the two co-defendants and simultaneously against the American Public they are sworn to shelter from harm but none of these rent-seekers care about. The US taxpayors entitlement to a functioning, fair and impartial justice apparatus remains undisputed. Obviously huge tax moneys cannot buy morals or quality at the DOJ. Indeed the governments position against SHOWING CAUSE (Appendix B) raises the uncomfortable spector of tacking too close to the wind6 This Appeal demonstrates that at least the 12th & 18th floor systems were broke, but not

Co-defendant VIERTEL submitted a MOTION in SUPPORT of appellants OBJECTIONS to MJ Pitmans pitiful conclusions without merit, eventually uncovered as a pro-government bias study. Appellant submits Appendix D : VIERTELs submission, while strongly worded, amazingly detailed and correct. which has its place in medical journals as such pathological malfunction resulting in self-imposed denial

of the existence of ethical boundaries in individuals suffering from this acute trauma
6

See Coppa, 267 F.3d 143, quoting Kyles (514 U.S. 439) intra
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only, because solid proof7 arrived from the Hon. Andrew Young, that at least since 1986, the prosecution on row ONE began to run [our] federal criminal justice system8. These issues are addressed below for correction of the abusive denials for the MOTION for an ORDER to Show (multiple) Cause.

Pro Se Statement Haines vs. Kerner, 404 US 519, controls here to allow for any colorable claim of innocence by a pro se Appellant, who is without sufficient IN JURIS finesse and without assistance by competent counsel, thus procedural hurdles are manifestly unfair and must be avoided. This appellate action represents as such, as it attacks the subject matter Mail JURISDICTION and the VALIDITY of a claim of coerced and manifestly unjust plea, coupled with question of law and Padilla violation [Padilla vs Kentucky, 130 S. Ct. 1473 (2010)] during the guilty allocation on these prongs: a) A colorable claim of innocence by the appellant, b) A dispute of the validity and fairness of the coerced guilty procedure on April 5, 2002, c) A claim without unfair prejudice to the United States of America d) A claim that could not be construed as an unjust advantage to this accused appellant. Manifest injustice is demonstrated below, and credibility is ascertained by the submissions and documents this appellant furnished post-plea to the Court, in particular for the absurd ultraeconomical prosecutorial theory from whole cloth that Burda Media was a non-profit pauper an arching crime theory nullified by its facts, when this genuine NY business corporation (AD 1978) became a hefty profit center since 1-1-1992 under appellants control until demission in July 1996, and proudly produced $7-8 million revenues each year by satisfactory services to almost three dozen overseas media clients. This undeniable material fact was counterfeit by the The suggestion of favoritism cannot be defeated by the very demonstrable fact that it has repeatedly occurred , to defang the discovery of and sanction for conspiracy by justice officials
8 7

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

sentencing.html
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prosecution who dogged 5 years of internal Burda investigations by close ally and referrer M. Pomerantz, and set out to withhold financials, bank accounts and audits they had obtain under subpoena during 18 month until early August 2002. The FBI man was instructed to divert the economic truth at BMI and he admitted it shamefully in confidentiality to a CI. The DOJ fabricated proceeding out of pure hubris and greed to please powerful players uptown. District Courts do get busy at times covering up official misconduct on row ONE for reasons of its own, unlikely unrelated to extra-judicial liabilities, reputational concerns over professional licensing, stature and a corner office later on: Oh, what a tangled web we weave, when first we practice to deceive! [Sir Walter Scott, Scottish Novelist (1771-1832)]. Appellant relies upon this distinguished Courts familiarity with a certain type of unlawful behavior patterns below. ei incumbit probatio qui dicit non qui negat ******* Argument I . The first fundamental question in this criminal case is whether JURISDICTION

existed, permit an indictment from a Grand Jury to proceed into a case under adjudication from an Article III judge on the basis of an allegation of a breach of statutory laws, or whether STRUCTURAL ERRORS corrupted the proceedings: On every writ of error or appeal the first and fundamental question is that of jurisdiction, first, of this court, and then of the court from which the record comes. This question the court is bound to ask and answer for itself, even when not otherwise suggested and without respect to the relation of the parties to it. [emphasis added], as adopted in Capron v. Van Noorden, 2 Cranch, 126, decided in 1804; Appellant submits that NO JURISDICTION for Mail Fraud existed since a scheme is per se crime-free and only turns into a statutory violation once INTERSTATE MAILS and INTERSTATE private and commercial carriers are abused by completion of a DELIVERY into another of the 50 domestic States. Foreign deliveries and acts are clearly excluded from the 1341 statute and DELIVERY is into Offenburg, Germany is far outside the domestic reach of 1341. Neither the

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agents on row ONE or the Adjudicator are competent to manufacture jurisdiction9. That competence lies with Congress alone, and Congress did not criminalize foreign mailings and any attempt or like act violated the separation of powers rule. Also: expressio unius est exclusio alterius is fully applicable to 18 USC 1341 , without fail and a principle rule any Court must respect.

The INDICTMENT above (S1, 3s is identical) is solemn PROOF that INTERSTATE transport was neither employed, nor would it have been chargeable due to the plain historic facts constituting the operations at BMI, and because no domestic interstate transportation could have furthered a scheme at Burda in any way. Burda Media was a foreign owned local NY producer of Media content it sold in FY 1995/96 for over $15 million exclusively to 25+ overseas clients. Justice Scalia summed it up in his latest West-Law book: Since the beginning of the Warren Court in the middle of the last century there has been a "breakdown" in the principles of judicial interpretation that has eroded public confidence in the rule of law. See also: United States v. Ford, Dkt No. 03-1774 (2d Cir. Jan. 19, 2006): "[R]estraint must be exercised in defining the breadth of the conduct prohibited by a Manufactured federal jurisdiction is even more offensive in criminal than in civil proceedings, cf. 28 U.S.C. Sec. 1359. As late Hon. Judge Freedman ruled with respect to civil actions in McSparran v. Weist, 402 F.2d 867, 873 (3 Cir. 1968) manufactured jurisdiction "is a reflection on the federal judicial system and brings it into disrepute."
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9

federal criminal statute."[Op.at 14][emphasis added]. And: There is a canon of legislative construction which teaches Congress that, unless a contrary intent appears, is meant to apply only within the territorial jurisdiction of the United States. U.S. v. Spelar, 338 U.S. 217 at 222[emphasis added]. The Supreme Court issued its conclusions when Justice Scalias taught the Second Circuit in Morrison vs National Australia Bank Ltd. Et al , SCOTUS 08-1191 of June 24, 2010: It is a "longstanding principle of American law 'that legislation of Congress, unless a contrary intent appears, is meant to apply only within the territorial jurisdiction of the United States.' ". EEOC vs. Arabian American Oil Co., 499 U. S. 244, 248: When a statute gives no clear indication of an extraterritorial application, it has none [emphasis added].See also Jed S. Rakoff, The Federal Mail Fraud Statute (Part I), 18 Duq. L.Rev. 771, 775 (1980) ("The first element of federal mail fraud ; devising a scheme to defraud .; is not itself conduct at all (although it may be made manifest by conduct), but is simply a plan, intention or state of mind, insufficient in itself to give rise to any kind of criminal sanctions."). One might easily devise a scheme to defraud entirely in one's head and not engage in any act proscribed by the statute until "plac[ing]" an item into the mail. US vs Ramirez, Vitug 420 F.3d 134 (Second Circuit, 2005). Academics and scholars of Rakoffs caliber agree10. No single ITEM was mailed or consigned by (what the government called victim who was without a dollar of loss) Burda Media itself, nor caused by any of the three defendants, since AIR LINE records prove that M&M Aircargo in Munich, Germany was the shipments consignee (not Burda Holding in Offenburg), through CARRIER LUFTHANSAs air way bill, an official DOT CARRIER transport document, the District Court has on record. See Appendix H.[Burda is nowhere to be found on this exclusive bill, a really true bill at last in this proceeding] This distinguished Court should employ a common sense reading of the indictment whether, on its face, it alleges a prohibited interstate use of the mails or carriers, or whether what Appellant submits, it failed to state a crime [for lack of a interstate commerce].

Limiting the unlimitless in Mail Fraud is standard L2 fare referencing lawprofs Podgor, Henning et.al. others who teach that international mail was deliberately not proscribed by Congress in 1341.
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10

Argument II The second fundamental question is based upon PLEA MERIT and whether the primary (elected) branch of government authorized the secondary and tertial (unelected) branches to complot court cases without statutory authority and without genuine American Interests at stake, and did not inform the public about it. They did not. They also gave no authorization to keep those controversies running for 11 plus years on the back tax-payors11 precious funding when a case is based upon unreal micro-economics12, hypothetical jurisdictional and on quasi jurisdictional venue grounds, jurists of reason can detect. In my particular proceeding the legal quality and validity of the preconceived boilerplate Court verbiage recanted at a judicial plea colloquia for the record to demonstrate particular perniciousness and repulsive unlawfulness jurists of reason, again, can detect. The District Judge was unable to extend its reach into any factual basis for a plea he solemnly proclaimed he has a duty to assure as a basis for its acceptance of any plea. Well, appellant submits, its hogwash of the size of a judicial farce in 41 pages that appellant respectfully submits in Appendix A. [on pg7, on pg 24 Weddle admits to the botched Pimental letter]. The Court inquired whether I understand some charged act thing thats not even criminal per se, while the supercrucial $8,120.00 Agate Invoice the putative corpus delicti ad transportum, remained totally obscured, unmentioned. At colloquia the utter irrelevance whether travel to Offenburg, Germany (wrong again) in June 1996 [Tr.pg 35] was a real nullity and whether the mails were used vel non, demonstrates the coordinated malevolence at play, totally utterly contrary to any factual basis. Conspiratorial charges were fully gutted as well. The argument therefore centers upon the VALIDITY OF THE PLEA by an unprotected, inefficiently and wrongly counseled alien who was coerced what by FD Weinstein called eating a

Appellant was a substantial resident taxpayor and submits that he truthfully reported and fully paid his share of federal, Social Security and state taxes for the entire duration of gainful occupation since 1972 (24+ years), including FY 1995 and 1996 sworn and true declarations, for which he was absurdly accused on bogus hearsay grounds [IRSs agents not even relied upon] without a shred of proof, to have willfully shortchanged the IRS, which was ultimately squashed in May 2011 by his German employer CERTIFICATION (see: Original Submission dated 5-15-2011 DE#242, ANNEX 1,2,3)
12

11

A self-aggrandized white shoe firm was dishonest enough to fabricate for profit and fees
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whole indictment. The scheme was obviously familiar to Weinstein, yet above a rather disliked [see US vs. Barroso,108 F.Supp 2d 338,344 (SDNY, 2000), affirmed 252 F.3d 653 (2d 2001)] plot by the government to abuse guilty allocations to further what amounts to the denial of due process [US vs. Dolah,245 F.3d 98,107, 2d 2001]. Appendix E is a prewar-letter by Lees counsel on the eve of my allocation which enforced my reading of scribbling concocted by FD Weinstein, repeatedly making appellant recant unfamiliar words unrelated to the charges appellant knew about, while pointing his middle-finger at a cheat-sheet Weinstein had slapped together, running. Again: the allocation failed to establish a conspiracy with Lee or Viertel, when appellant referred to conspiring with office staff, far away from the first charge the government was so eager to finagle courtside. Appellants unintelligence and mis-conceptualization of the entire proceeding is striking read; while I grasped for help in honest belief that uncharged - mailordering of domestic merchandise was the crime to plead to, the District Court ruthlessly continued to waterboard a tongeless alien defendant in total disconnect from what factual basis a valid plea required. Playing first fiddle & prompter was one AUSA Justin Weddle [supervised by AUSA George Canellos] who reached notoriety for trespassing federal statutes long before he was apprehended and disqualified by a distinguished Aleynikov panel of this Court in February. But, this government still places reliance upon the mockery at my unintelligent plea on page 2 of its 6-30-12 response. Assistant proctrix Cohans undocketed letter [to JGK) states: Blumenbergs contentions should be rejected. On April 5, 2002, Blumenberg pleaded guilty to Indictment S1 01 Cr.571 (JGK), filed in five counts. This contention should be rejected as a false basis for attempting to quash valid ERROR claims, and the government further pretends by mocking the District Court, that an alien plea was sufficiently investigative and factual to have ascertained the jurisdictional validity of the underlying charges. A travesty of obvious disconnect from Courthouse reality by a Court officer [See: Appendix B]. The question, who the government take for a fool, is duplicitous and rhetoric. I hereby submit, that upon arrival in Germany 2006 I slowly recovered psychologically from previous cognitive ailments. After review of my records and recollections, I unilaterally withdrew my

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coerced plea in 201013, also and because of Padilla grounds which the Supreme Court recognized as a Sixth Amendment violation. I was demonstrably subjected such 6th Amendment violation on April 5, 2002. The Plea Transcripts content is significant to demonstrate the Januslike measure courtroom terror can achieve by an Art.III judge[s] [who] are presumed to know the law U.S. vs Kezerle, 99 F.3d 867, 870 7th (1996). I submit that it appears true that knowledge is not, or is not merely, justified true belief"14 From all corners of the Transcript the federal defenders ineptness and ineffectiveness is established crossing FD Weinstein into open collusion against the direct interest of his client, while it establishes my bland unintelligence combined with involuntary, prescription drug induced, misunderstanding of which part, what act and how I might have violated all of the required sinequa-non conduct elements or a factual mens rea element necessary to the criminality proscribed by an act of Congress. Appellant did not breach any federal criminal statute15 some 6 years earlier [Justice Kennedy suggested several measures to help ensure against late, frivolous or fabricated claims. That werent employed here] . Why & How an international airfreight carriage to Germany on June 28, 1996 became a proscribed air-cargo method not the least violating Congress protections for domestic instrumentaria and Congress seriatim (1341) statutory inclusion of interstate carriage only, and Congress exclusion of foreign carriage or delivery to this date after Congress modified the statute to increase the penalties and Hurrican acts but it did not touch the interstate limit.

European Citizens are permitted on grounds that [coerced pleas] infringe upon an individual's rights under Article 8 of the European Convention on Human Rights, incorporated also in the UK's Human Rights Act 1998.
14

13

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

Appellant paid <$3000.00 fine and received 1 year unsupervised probation for five distinct breaches of trust he owed his long-time employer Burda GmbH in Offenburg, Germany, including the $8,120 Agate voucher appellant confessed to have fabricated inside his Manhattan Burda office, that became the false - basis of the mail fraud delivery in 2001. International Delivery was a fact, and Germanys Judge examined the Agate original exhibit in Offenburg prior to sentence to pronounce that this case has more holes than a Swiss Emmentaler. The Judge ordered the records expunged by December 1999, after probation time uneventfully completed in New Jersey, appellants residence.
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15

Thus the District Court certainly kept this violently miscounseled alien far away from the Strickland rules and from Sixth Amendment goodies and rather blindfolded the alien inside pitched darkness about what the 1341, 1343 and 371 laws actually prohibits (see Tr.) while clouding its own very dubitable subject matter jurisdiction if not the entire lack thereof. See Subject matter jurisdiction is an absolute stricture on the Court Leroy vs Great UC 443 U.S. 173, 180 (1973). Further, the District Court conscientiously avoided addressing the maximum of penal consequences appellant could suffer from an admission of guilt. This is a judicial act beyond salvage and entirely INVALIDATES the plea, because such acts violate human rights and what Padilla [supra] taught those in the retail segment of the judiciary laboring somehow sometimes clandestinely on the other side of honorable, the other side of fair and of impartial, while clogging the discharge of their constitutional obligations and their solemn oath, see 28 USC 455. In fact, the District Court went into alien-invalid and bogus supervisory release periods from incarceration (BOPs Fort Dix staff ridiculed my timely request for CCC half-way house in 2005 calling me foolish believer in judicial proclamations) and the equally - entirely bogus probation portion of the punishment, as well as keeping dead silent on removal by deportation, which seems to be disrobed dirty words during plea and sentencing, plus, most unlawful, was the Courts, the governments and my defenders staged16 silence about the loss certainty of a quarter-century-earned old-age-benefits amounting to hundreds of thousands of Social Security dollars over time, that were absolutely, positively and definitely not a simple collateral consequence for me, the silly alien eating a bogus indictment. I relied upon Pimentels letter the government admitted suddenly to have botched (see Appendix A Tr. Pg 7), but all the participants decided not to disclose the undeniable loss of substantial paid in benefits.[Appendix E, 2008 benefit denial letter exhibit B by Social Security Frankfurt- A deleted on privacy grounds ]

16

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

THE PRESIDING JUDGE warned this 58 year old alien defendant U.S. wage earner- tax payor, who was unlearned in law, a permanent resident and NH (number holder) of Social Security Records (see FBI records), that a deportation-prone guilty plea allocation will result with certainty in consequentially disabilitative LOSS OF SSA Title II retirement and/or disability benefits to an alien.
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Argument III The third fundamental question at bar is that of EQUAL JUSTICE, whether and how 2 aliens (Appellant and co-defendant VIERTEL) could carry punishable guilt for identical federal violations allegedly done in cahoots with the only American-birthed defendant, John Lee, whose was - S2 indicted on 6-6-2002 on more substantive Counts than Appellant and co-defendant - able to obtain a micro-surgery extraction nolle-prosequi on the night before July 4th 2002, staged by the current Deputy US attorney, Richard Zabel, acting on behalf of Lee as surgeon private causing a clean sweep17 ex machina. This albeit safely guarded secret procedure set the gold standard for effective assistance by able counsel, something two aliens could not muster or afford.

17

Terminated Counts for Defendant John Lee 18:371.F CONSPIRACY TO DEFRAUD THE UNITED STATES (CONSPIRACY TO COMMIT WIRE FRAUD) (1) 18:371.F CONSPIRACY TO DEFRAUD THE UNITED STATES (1s)

Disposition In light of the foregoing, I recommend that an order of nolle prosequi be filed as to defendant John Lee with respect to Indictment 0 Cr. 571, Indictment S1 01 Cr. 571, and Indictment S2 01 Cr. 571. In light of the foregoing, I recommend that an order of nolle prosequi be filed as to defendant John Lee with respect to Indictment 0 Cr. 571, Indictment S1 01 Cr. 571, and Indictment S2 01 Cr. 571. In light of the foregoing, I recommend that an order of nolle prosequi be filed as to defendant John Lee with respect to Indictment 0 Cr. 571, Indictment S1 01 Cr. 571, and Indictment S2 01 Cr. 571. In light of the foregoing, I recommend that an order of nolle prosequi be filed as to defendant John Lee with respect to Indictment 0 Cr. 571, Indictment S1 01 Cr. 571, and Indictment S2 01 Cr. 571. In light of the foregoing, I recommend that an order of nolle prosequi be filed as to defendant John Lee with respect to Indictment 0 Cr. 571, Indictment S1 01 Cr. 571, and Indictment S2 01 Cr. 571. In light of the foregoing, I recommend that an order of nolle prosequi be filed as to defendant John Lee with respect to Indictment 0 Cr. 571, Indictment S1 01 Cr. 571, and Indictment S2 01 Cr. 571.

18:371.F CONSPIRACY TO DEFRAUD THE UNITED STATES (1ss)

18:1343.F FRAUD BY WIRE, RADIO, OR TELEVISION (2)

18:1343.F FRAUD BY WIRE, RADIO, OR TELEVISION (2s)

18:1341.F FRAUDS AND SWINDLES (MAIL FRAUD) (3)

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The warrior-bands cloture by nolle prosequi was, more likely than not, caused by purest proctor greed, staged by two ber-pressure S2 charges18 targeting John Lee, and John Lee alone19. The timely hit raised those stakes and fears, monetizing a nolles value proposition to play trump card to catch Lees ante. John Lee lead a wealthy life, his gratitude was a worthwhile target. Judges seem to close their eyes and noses, when stuff starts smelling: professional bar courtesy. Suddenly, quality arguments and weighty law Zabel & Benjamin so preciously had labored on hit: BINGO. Lees June 2001 SOL Motion would do the trick, better yet, to get it mooted by nolle20 prior to a potentially lawful ruling would keep benefits exclusive and far away from unworthy aliens on CJA. The SOL motion would equally remain concealed; Appendix G demonstrates appellants futile attempt to uncover the secret. The bald eagle got diarrhea, but Lee was cleansed. Appellant submits that his S1 INDICTMENT, with identical charges as Lees
In light of the foregoing, I recommend that an order of nolle prosequi be filed as to defendant John Lee with respect to Indictment 0 Cr. 571, Indictment S1 01 Cr. 571, and Indictment S2 01 Cr. 571. In light of the foregoing, I recommend that an order of nolle prosequi be filed as to defendant John Lee with respect to Indictment 0 Cr. 571, Indictment S1 01 Cr. 571, and Indictment S2 01 Cr. 571. In light of the foregoing, I recommend that an order of nolle prosequi be filed as to defendant John Lee with respect to Indictment 0 Cr. 571, Indictment S1 01 Cr. 571, and Indictment S2 01 Cr. 571.

18:1341.F FRAUDS AND SWINDLES (3s)

18:1343.F FRAUD BY WIRE, RADIO, OR TELEVISION (3ss-4ss)

18:1341.F FRAUDS AND SWINDLES (5ss-6ss) Highest Offense Level (Terminated)

Felony The charged international wire [only LEE was charged with 2 wires] on 6-20-1996 was the wrong wire but all prior wires in sight, were time-barred; the mailing on 6-28-1996 was neither an interstate mailing nor furthering a detectable scheme, because the sheet either mailed, vel non, was not part of a scheme, but a first & last time retroactive voucher to paper an earlier undocumented transaction over, utterly unplanned, while earlier mailings would be time barred on indictment day 6-14-2001.
19 18

Nota bene: Lees March 22 & 26, 2002 innocence proffers were staged as wicked foreplay to add two more similar (hot air) charges in Lees S2 (3ss-4ss, 5ss-6ss) in early June. Scare mongering

20

Appellant submits that John Lee informed him in 2002, that he incurred almost $800000 in legal fees to get a full vindication on 7-3-2002, but he was bound to strict confidentiality, with regrets.
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pre-S2, was equally time-barred. Harris, Weddle and Cohen plugged Lee by nolle with scienter that all federal charges were unreachable and thus invalid on solid grounds. They violated their affirmative duty to the appellant to disclose the exculpatory issues.

It is reasonable, that Harris and Weddle feared the time-bar argument, rushed to conclusions, bedazzled and re-bedazzled the grand jury and pushed S/A Connor OSullivan into calumniation over the Agate timeline and much more that OSullivan knew to be exculpatory for all the defendants, he knew, and the AUSA knew, they crooked the Grand Jury. Harris pushed him hard, OSullivan is reluctant at first; the GJ transcript is proof for another travesty. Southern District mockery, the triple-ham procedure, often practiced, never improved. OSullivan, a learned CPA, quit his job; so did Harris presumably to study Talmudic law to learn what could be done ethically sometimes in the future to address the devoid of any sense of morals or any sense of honesty or any sense of integrity among some prosecutorial operatives. Harris violated.

.Argument IV The fourth fundamental claim on this Appeal is based upon the abusive denial by the District Court of reasonable assistance to uncover original wrongdoing that provided a vicious basis for a criminal case in which the Court repeatedly denied MOTIONS for Brady materials the government wanted to keep secret to save its fraudulent indictment. The Court denied Motions for bills of particulars in favor of the dubious accuser, his government. It certainly appears likely that the District Court sought to protect the accusers official attorneys, his former colleagues, from dire consequences over manufactured elements, withheld investigations and forensic analysis (the Burda Media internal investigations in 1996 by Rogers & Wells and BMIs audit FY
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1995/96 were among the relevant exculpatory documents withheld despite demands over demands), dubious theories and far reaching obstructive endeavors. It would have been a small step for an impartial judge into the right direction but a big step towards genuine justice administration to direct the government to show CAUSE on these four issues and explain why abusive prosecutors should go sanction-free on proven misconduct (see: Stevens). The Courts DENIALS crushed the following reasonable demands deserving resurrection: 1) Presenting a bogus economic victim (Burda Media Inc) and cloaking BVG: the record speaks for itself, BMI (Burda Media Inc) did not incur a economic loss from the unethical portions of their modus operandi, because BMI charged a margin on all expenses regardless of legitimacy or causation, which allowed BMI to earn substantial revenues from its clients, who like in every commercial production endeavor receive a total product costing, even if some item had a dubious genesis (Appellant submits that 5% was the maximum slippage at all relevant times). BVG was a subcontracted billing agent in Germany for BMI, and withholding the existence of BVG, the high fees BVG earned at BMI [who was costumed up by Mary Jo Whites operatives as a NY charity non-profit in need of German Cash contributions, when, in fact, BMI paid its own millions to German subcontractors out regular proceeds], was a constitutional due process violation the government must be directed to explain. The Courts denial constitutes abuse of judicial discretion for cause. 2) Presenting a fabricated indictment by all counts: The indictment appears to draw most language and theory from Rogers & Wells Warren Feldman [on staff]; with Feldmans corrupted language came deliberate fabrications by R&W concocted despite a investigation at BMI that began July 1996 and turned into BMIs most expensive and most worthless piece of vendor malware dwarfing the appellants manipulations which caused regular revenue at BMI. BMI suffered incontrovertible and claw-back-free damages from R&Ws hourly billing scam of over $2,5 million dollars21, at the end of which R&W asserts willful darkness about the simple economics of a Profit Center subsidiary, like BMI was since 1992. BMI was not a NINJA type pauper, but a very profitable company, as R&W so dearly found out, a fact that A big chunk of change for a pauper, government costumed BMI, which, inter alia, is straight out of proof box, that this USAO was corrupt for not inquiring about the referral received from Rogers & Wells whose hourly billing to BMI was about to be terminated in 2000 requiring a refreshed from the prosecution in the format of Grand Jury subpoenas costing BMI dearly.
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renders the indictment wholesome hogwash, spoon-fed by Feldman to Whites agents. The Courts denial surpassed abuse of discretion for ulterior motives it is sworn not to entertain. 3) Brady violations for cloaking BMIs 96 audit report: The 1996 BMI [local] forensic audit was performed in New York after my resignation upon orders by acting CEO. The audit was completed in June 1997. The audit was indubitably withheld by the government (and obtained in 2004 from German Police files by co-defendant Viertel while subject to correction inside Colemans hoosegow). The prosecution dared to color a NEW YORK audit of a NY domestic corporation Burda Media Inc: the German audit [see AUSA response22 Appendix B, pg 3) tinting it as if a New York audit done for a NY CEO of a NY corporation was unreachable by its agents when, in fact, R&W had it since June 1997 and kept it away from prying eyes who could derail a good racket. R&W covered the USAOs receipt of BMIs financials DNA by hand delivery in August 2002, just before the trial of Viertel, and probably as a fig leaf dropoff in case other financials were lost by the USAO contained in previous paper dumps. But that delivery did not cause any substance review of the exculpatory weight, the government simply claims, that their principal crime theory, replenishments from Germany couldnt be shaken by a certified and historic chartered result at a NY domestic corporation for the relevant time to derail their counterfeit, malicious theory. These balance sheet books constituted the financial snapshot DNA for 1995 and 1996 (as well as other years). The nature of such a very detailed audit in a white-collar-case is like DNA for a capital case, because it allows reconstruction of every dollar spent, earned and maybe lost. No dollar loss was registered23 at BMI under my direction and after, no qualification for a fraud reserve was inserted, because BMI earned revenue from high, even unsupported expenses. Thus, millions were earned in 1995, a bit less in 1996. That is why the Courts negation to ORDER a SHOW of CAUSE widely surpassed its authority, in further aggravation of previously and absurdly dishonored DNA-Audits and their intrinsic and case-most-relevant economic value

AUSA Cohen was not entitled to new dancing shoes to continue her pearl street waffle when misleading the USCA2 panel on 9/21/07. The music stopped on receipt of audited balance sheets on Aug 7 and 8 in 2002, those, Cohan & Harris kept secret to con the Court into a crime theory long dead. Dead on arrival in Mollos building. Dead since 1996.
22 23

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

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message [by certified chartered members under GAAP and Tax German Code], in yet another refutation. It seems that any and all HLS clones of a class are graduated as jurists, but Havard wont vouch that these clones sport a full set of morals or even more prosaic and basic microeconomic grasp for simple commercial production activities like those at Burda Media New York. [Lees defenders Zabel & Benjamin went on record with amazing prevoyance December 18, 2001 to admonish the prosecution over its unfulfilled obligations addressing24 [A.G.L.H.F. LLP letter to AUSA Harris, pg 2] what they intended to withhold and later effectively withheld].

4) Wonton FBI fugitive classification under Color of law: is a legitimate complaint of prosecutorial misconduct that must be aired in public and for the benefit of all citizens and aliens alike in a country that amazingly has the highest arrest quota on earth. Here, the internal FBI document is telltale. Case 01cr571 was never classified as fugitive in Court records still alive, but AUSA Harris, Weddle, and others employed skullduggery without hesitance. Appellant relies upon this distinguished Courts awareness of unlawful methods by government agents. Thus, a demand to SHOW CAUSE by MOTION is justified when those get caught who break laws but were sworn to uphold them. If there is anything the public can gain from this case, it is the scofflaw methods by agents or lawyers serving the federal government who feel immunized from concocting constitutional violations across State lines resulting in even more constitutional violations in foreign districts for the purpose to unlawfully induced other agents to waive statutory procedures and due process by use of key, yet impermissible words: Fugitive ( 3 times used, three defendants). This fictitious classification violated US Code 181001 three times when unnamed FBI scriveners

24

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inserted - FUGITIVE (B) - after each name for an interstate apprehension wire in furtherance of a scheme to obtain bonding money from derogatorily mislabeled targets of a federal persecution (REMINDER: defendants are presumed innocents until proven guilty, and a FUGITIVE label seeks to invalidate and maliciously undercut protections the constitution provided for). When due process regulations become just nuisance to these enabling zealots who ruthlessly counterfeiting wires in reliance upon zero backfire all of their countrys legitimacy was removed. Lawyers like Harris, Weddle and all supervisor must be subject to removal from practice, but they flourish because they enjoy equally dishonest protectors in high places, and highly fearful magistrates (like MJ Vitunac) who wont sanction abuse when she it, and when it originates from the Southern District every law-handyman wants to kowtow. The Courts denial of my MOTION is repulsive in the face of due process and calls for the strongest rejection25. Conclusion Therefore, appellant prays, that this honorable Panel vacates the judgment of conviction, dismisses the indictment for lack jurisdiction and misconduct, equal justice concerns and other structural errors cited above, and decrees all such further relief and sanctions this Court deems reputationally appropriate and in the interest of justice. I hereby certify and verify under penalty of perjury under the laws of the United States of America that the foregoing is true and correct [28 USC 1746(1)]. Executed and Respectfully Submitted on June 26, 2012 /s/ __________________________ Fritz G Blumenberg, Appellant pro se Am Hempberg 2 , D-21224 Rosengarten, Germany Tel:*494108-534590, Fax 535, fblumenberg@mac.com Plus APPENDIX Those still popular and powerful United States lights in favor of the government must be turned off, as were those of secret Savac policemen in Iran, their MfS counterparts in Stasi-Germany and those of Gestapo and CIA.
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Certification: 6973 Words

I hereby certify that an electronic copy of this submission and the Appendix was emailed to Richard Zabel,Esq., Deputy USA SDNY, and Mary-Jo White, Esq. on this day. /s/ Fritz G Blumenberg

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

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