Search

Updated: Mar 3


The title of this article uses a word that is not exactly the epitome of intellectual writing. But the word “bullshit” is really the best word to describe how federal courts apply pleading standards.


Take a RICO pleading in a civil case. Intelligent honest judges have referred to RICO as such:

[E]xperience reveals that many plaintiffs, rather than fostering RICO's mission as private attorneys general aiding public law enforcement, actually appear as private prospectors digging for RICO's elusive gold, and more often than not generating substantial costs rather than net gains to the public.
Rosenson v. Mordowitz,2012 U.S. Dist. LEXIS 120077 *12-13 (S.D.N.Y. 2012) (Citations omitted)
In the recent case of Spoto v. Herkimer County Trust, 2000 U.S. Dist. LEXIS 6057, 2000 WL 533293 *1 (N.D.N.Y. Apr. 27, 2000), Judge Howard G. Munson of my sister Court made the following prescient observation:
"Plaintiffs' instant action is a superlative example of why some legal minds posit that the civil provisions of [RICO] are the most misused statutes in the federal corpus of law."
2000 U.S. Dist. LEXIS 6057, *2-3, 2000 WL 533293 at *1.
Judge Munson knew whereof he spoke. I surmise that every member of the federal bench has before him or her at least one -- and possibly more -- garden variety fraud or breach of contract cases that some Plaintiff has attempted to transform into a vehicle for treble damages by resort to what another respected jurist, Judge Allan Schwartz of this Court has referred to as "the litigation equivalent of a thermonuclear device" -- a civil RICO suit. Schmidt v. Fleet Bank 16 F. Supp. 2d 340, 346 (S.D.N.Y. 1998) (quoting Miranda v. Ponce Fed. Bank, 948 F.2d 41, 44 (1st Cir. 1991)). All too frequently, these damning actions are commenced without the Plaintiff's … being aware of the most fundamental principles of the law that governs allegations of racketeering in a civil action. This case is more of the same.
Goldfine v. Sichenzia,118 F. Supp. 2d 392, 394-395 (S.D.N.Y. 2000) (Emphasis added)

These are real Judges.


RICO


For many of lawyers reading this piece is a good way to expand your practice into RICO defense. Lord knows there are tons of these cases – one is probably filed by an insurance company every hour of every day in the EDNY – and the RICO defense bar in large part are hard pressed to handle a traffic court matter. So cut and paste and become a RICO Defense expert. Let us begin:


What is the pleading standard that a RICO complaint must meet in order to withstand a motion to dismiss? It is supposed to be very high according to Federal Statute and case law. Here is the law that I have taken from a recently submitted memorandum of law in support of a motion to dismiss:


Under Rule 12(b) (6), the well-pleaded material allegations of the complaint are taken as admitted; but conclusions of law or unwarranted deductions of fact are not admitted. This principle applies with even greater force in a fraud case governed by the more stringent pleading requirements of Fed R. Civ. P. 9(b).
First Nationwide Bank v. Gelt Funding Corp, 27 F.3d 763, *771 (2nd Cir. 1994) (emphasis added) (citations omitted)
Notwithstanding its broad language, the federal RICO statute was created for the sole purpose of fighting organized crime. Congress wanted to provide new weapons for targeting and prosecuting organized criminals that had infiltrated legitimate businesses and organizations. Rusello v. United States, 464 U.S. 16, 26-27 (1983). Meanwhile fraud pleadings, including fraud based RICO are subject to the heightened particularity standards set forth in F.R.C.P. Rule 9(b). Anatian v. Coutts Bank (Switzerland) LTD., 193 F.3d 85 (2d Cir. 1999) "[I]n civil RICO actions, the concerns that dictate that fraud be pleaded with particularity exist with even greater urgency." Wilson v. Toussie, 260 F.Supp.2d 530, 537 (EDNY 2003).
The elements of fraud [Rule 9 same as a mail/wire fraud RICO] are: (1) the existence of a material false representation or the omission of a material fact; (2) made with knowledge of its falsity and an intent to defraud; and (3) leading to reasonable reliance on the part of the plaintiff and actual damages as a result of such reliance.
Kirk v. Liberty Mut. Ins. Co., 1998 U.S. App. LEXIS 25997 *5 (2d Cir. 1998)
To avoid dismissal, a RICO claim that asserts fraud as the injury-producing predicate act must (a) allege a material misrepresentation, (b) allege that this misrepresentation was a but-for cause of the plaintiffs' entering into the transactions at issue, (c) allege that the misrepresentation was the proximate cause of the losses the plaintiffs sustained, and (d) allege the fraud with the required particularity.
Moore v. PaineWebber, Inc.,189 F.3d 165, 169 (2d Cir. 1999) (Emphasis added)
The plaintiffs' theory of RICO liability is based on predicate acts of mail fraud in violation of 18 US. C. § 1341 ... For RICO liability to exist as a result of a violation of these statutes, the defendant must have made misrepresentations that are material to the harm caused to the victim. The causation requirement, which is jurisdictionally mandated, has two different components. There must be 'transaction causation,' meaning that the misrepresentation must have led the plaintiffs to enter into the transactions at issue, and there must be "loss causation," meaning that the misrepresentation must be both an actual and a proximate source of the loss that the plaintiffs suffered.
(Id. at 169-170)
To avoid dismissal the RICO complaint must “(1) specify the statements that the plaintiff contends were fraudulent, (2) identify the speaker, (3) state where and when the statements were made, and (4) explain why the statements were fraudulent” Anatian v. Coutts Bank (Switzerland) LTD., 193 F.3d 85 (2d Cir. 1999)

And try this one on for size:

Further, in a fraud-based RICO claim, if the sole purpose of the alleged enterprise is to perpetrate the alleged fraud, there can be no enterprise for RICO purposes. See Schmidt, 16 F. Supp. 2d at 350 ("If the purpose of the entity or the association in fact was to defraud the investors, then it has no continuity or distinct structure beyond the alleged conspiracy. In short, the enterprise … [in this case] would not exist were the predicate acts removed from the equation.") (internal citations and quotations omitted).
Goldfine v. Sichenzia, 118 F. Supp. 2d at 401.

That’s a slap in the face of insurance companies who bring RICOs in the EDNY on an almost hourly basis claiming to have been defrauded by a medical provider, an alleged layperson owner, management and anyone else in the building no matter how big the building is. If all these alleged bad guys did was commit the insurance fraud alleged there is no Enterprise and without an Enterprise there cannot be a RICO.


Why is this? Because RICO was designed to go after the Mafia’s infiltration of Unions. A Mafia “family” – Enterprise – would be a cohesive organized unit with hierarchy and members who had different functions. The “family” or “enterprise” would be involved in various criminal endeavors all at once: Union Infiltration; Extortion; Prostitution; Drugs – the good ole days. RICO was meant to target the Mafia – not breach of contract cases; alleged overbilling; or Greenpeace and other activists like it does now.


Here is some more law from the memorandum that I recently submitted in the EDNY. This law sets forth the enterprise element of a RICO pleading. The bold sections are the pleading requirements that could be used as point headings; however you’d like to phrase them:


An enterprise is "any individual, partnership, corporation, association, or other legal entity, and any union or group of individuals associated in fact although not a legal entity." First Capital Asset Mgmt., Inc. v. Satinwood, Inc., 385 F.3d 159, 173 (2d Cir. 2004) (internal quotations omitted); see also 18 U.S.C. § 1961(4).It is identified "by evidence of an ongoing organization, formal or informal, and by evidence that the various associates function as a continuing unit." United States v. Turkette, 452 U.S. 576, 583 (1981). In this case, plaintiff attempts to allege an "association-in-fact" enterprise, which is a "group of persons associated together for a common purpose of engaging in a course of conduct." Boyle v. United States, 129 S.Ct. 2237, 2243 (2009) (quoting Turkette, 452 U.S. at 583).
An association-in-fact enterprise must have an ascertainable structure, which necessitates a showing of three structural components: (1) a purpose; (2) a relationship among those associated with the enterprise; and (3) sufficient longevity to permit these associates to pursue the enterprise's purposes. Boyle, 129 S.Ct. at 2244. There must also be a "nexus...between the enterprise and the racketeering activity that is being conducted." First Capital, 385 F.3d at 173-74.
Simply stating in conclusory fashion that all the defendants are an "enterprise within the meaning" of the RICO statute is insufficient, absent some factual allegations in support. Here there are no allegations which would plausibly suggest some overall "functional unit" as required by Turkette. See 452 U.S. at 583. There are no legally sufficient pleadings with regard to the Smith Defendants “as to the internal workings or organization of the alleged enterprise, explaining neither how it was run nor by whom." Greenberg v. Blake, No. 09 Civ. 4347(BMC), 2010 U.S. Dist. LEXIS 57617, 2010 WL 2400064, at *6 (E.D.N.Y. June 10, 2010) (citing First Capital, 385 F.3d at 174-75). "Plaintiffs' conclusory naming of a string of entities does not adequately allege an enterprise." First Capital, 385 F.3d at 175 (internal citations omitted)
Under 18 U.S.C. § 1962(c), a plaintiff is entitled to relief only after establishing that each individual defendant participated in the operation or management of the alleged RICO enterprise. Reves v. Ernst & Young, 507 U.S.170, 179-80 (1993); DeFalco v. Bernas, 244 F.3d 286, 306 (2d Cir. 2001).
The test is not involvement, but control. Shams v. Fisher, 107 F. Supp. 2d 266, 274-75 (S.D.N.Y. 2000). The "simple taking of tasks that are 'necessary or helpful' to the enterprise, without more, is insufficient to bring a defendant within the scope of § 1962(c)" and "simply because one provides goods or services that ultimately benefit the enterprise does not mean that one becomes liable under RICO as a result." Id. at 276. There is a substantial difference between actual control over an enterprise and association with an enterprise in ways that do not involve control; only the former is sufficient because the test is not involvement but control. It is not the importance of such services that determines § 1962(c) liability, but whether the provision of those services allows the defendant to direct the affairs of the enterprise. The mere fact that a defendant may have aided in the alleged scheme to defraud, even if that aid was intentional, does not give rise to liability under 18 U.S.C.S. § 1962(c). Goldfine v. Sichenzia, 118 F. Supp. 2d 392, 394-395 (S.D.N.Y. 2000)
The payment of or receipt of rent does not create a role in directing a RICO enterprise's affairs just as the [a fact from the specific case involved] "lending money to an enterprise does not establish a role in 'directing the enterprises affairs."' Berry v. Deutsche Bank Trust Co. Ams.,2008 U.S. Dist. LEXIS 76104 *17 (S.D.N.Y. 2008)
"The 'enterprise' is not the 'pattern of racketeering activity'; it is an entity separate and apart from the pattern of activity in which it engages ..." United States v. Turkette,452 U.S. 576, 583 (1981). The enterprise must be distinct from the person(s) accused of conducting the racketeering activity. See, e.g. Rosenson v. Mordowitz,2012 U.S. Dist. LEXIS 120077 (SDNY 2012) See, Goldfine v. Sichenzia, 118 F. Supp. 2d at 400:
"It is firmly established that, to state a claim under RICO, a Plaintiff must allege and prove the existence of an enterprise which is "separate and distinct from the alleged pattern of racketeering activity." Black Radio Network, Inc. v. NYNEX Corp., 44 F. Supp. 2d 565 at 580 (S.D.N.Y. 199
***
In Schmidt v. Fleet Bank, Judge Schwartz held that in order to determine whether the alleged enterprise is separate from the activity in which it engages the Court should look to whether the alleged enterprise would exist in the absence of that activity:
The enterprise cannot simply be the minimal association which surrounds the [pattern racketeering] acts. In other words, the members of the group as a whole must have a common link other than the racketeering activity. Thus, in assessing whether an alleged enterprise has an ascertainable structure distinct from that inherent in a pattern of racketeering, it is appropriate to consider whether the enterprise would still exist were the predicate acts removed from the equation.
Id. at 400-401. The Court in Black Radio Network, thus held:
Plaintiffs have not alleged an enterprise separate from its pattern of racketeering activity. Even assuming that these proposed defendants were part of a continuing enterprise, it was part of that enterprise only by virtue of the alleged racketeering activity. Plaintiffs simply have not alleged an ascertainable structure distinct from that inherent in [the alleged] pattern of racketeering, and it is apparent that the alleged enterprise, including the proposed defendants, would not still exist were the predicate acts removed from the equation. Accordingly, Plaintiffs fail to state a claim under 18 U.S.C. § 1962(c).
44 F. Supp. 2d at 581 (internal citations and quotations omitted).
Once again "[in] a fraud-based RICO claim, if the sole purpose of the alleged enterprise is to perpetrate the alleged fraud, there can be no enterprise for RICO purposes." Atkins v. Apollo Real Estate Advisors, L.P., 2008 WL 1926684, *15 (E.D.N.Y. 2008).

But don’t worry corporate oligarchs.


When you bring a RICO the pleading standards go right out the window. They are bullshit. But I know from experience that when a corporate oligarch like a big insurance company is sued under RICO or fraud the pleading standards become a hurdle that even Michael Jordan cannot leap.


It is so bad that when one makes a motion for a conference seeking permission to make a motion to dismiss an insurance company RICO Complaint one is met by a threatening opposition to that motion in the form of a letter. The letter is filed on ECF. It has a string citation that is a page or two long of Eastern District cases denying motions to dismiss and threatening sanctions for the making of such motions.


As an aside that is the efficiency of federal court. You must bring a motion to request a hearing to seek permission to make a motion – even if it’s a motion of right like a motion to dismiss. The efficiency is the fact that you can do it in the form of a letter. It’s like the time when I worked for AIG and we had a meeting to decide why we should have the meeting. I proudly spoke up: "The free lunch."


When I made my motion for a conference to seek permission to make a motion to dismiss I was met by such a sanction threatening opposition. Here is how I addressed it in the memorandum of law:

I know all about the tidal wave of Eastern District case law denying motions to dismiss insurance company RICOs and even saying such motions should be met by sanctions. One should not be impressed. Those cases deal with other pleadings – not the pleadings in this case. They have never gone through the scrutiny of an appeal. Furthermore, the deluge of EDNY cases on this subject are not controlling. The pleading standards set forth by the United States Supreme Court and the Second Circuit are controlling.
It is most respectfully submitted that if this Court sustains the Amended Complaint it is incumbent upon the Court to show the Smith Defendants – and every citizen burdened by RICO – which exact pleadings from the Amended Complaint push the asserted claims over the bar set by the pleading standards established by the Supreme Court of the United States.

I even dropped a footnote:


The Eastern District is a RICO friendly haven for insurance companies. The bringing of such suits has become a cottage industry – according to one Magistrate Judge. This complaint demonstrates that these suits are brought in order to avoid the payment of claims by insurance companies including the avoidance of claims arbitration. It is on par with the RICO analysis performed in: Nybo, Nicholas L. (2013) A Three-Ring Circus: The Exploitation of Civil Rico, How Treble Damages Caused It, and Whether Rule 11 Can Remedy The Abuse, Roger Williams University Law Review: Vol. 18: Iss. 1, Article 3.

THE TWOMBLY REVOLUTION OR DEGENERACY?


Up until 2007 the general pleading standard in federal court was much akin to notice pleadings in the State of New York – in fact New York like many other states adopted it. In both places there were exceptions for such things as fraud, RICO and defamation. But most of the pleadings were governed by a notice type pleading standard.


Recently I read a negligence complaint where the body of the complaint was one page long. It led to a full surrender of the auto policy. It went something like this. Note the artfulness:


On or about February 31, 2017, at on or about 2:00 P.M., at the intersection of Putin Street and Lev Lane, in the town of Stalingrad, County of Minsk, [Upstate New York] the Plaintiff’s motor vehicle lawfully entered the aforesaid intersection. At the same above time in the same above intersection the Defendant’s motor vehicle entered the intersection in a negligent and reckless manner, which negligence and recklessness was the sole cause of the Defendant’s motor vehicle colliding with the motor vehicle driven by the Plaintiff. As a result the Plaintiff was thereby caused to be rendered sick, sore and lame.


The complaint gives general notice to the Defendant as to what the alleged actionable conduct (“negligent and reckless”) as well as the resultant damage … “sick, sore and lame.” It is therefore a sufficient “notice pleading.” Move on to discovery.


The above notice type pleading was with limited exceptions including RICO – mentioned above – the federal standard. You will see.


Then came 2007 and a quiet but massive revolution that was just another way for wealthy interests to steal from and brutalize citizens. I am talking about the abomination that is Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007). In Twombly the Supreme Court “retired” the notice pleading standard that was set in stone by long and recent precedent. The Court retired the standard like it was Tom Brady walking off the field with no contract after the New England loss in the playoffs. “See you Tommy boy – it was good – but the wind is blowing a different direction.”


Of course the lack of any respect for its own precedent is a hallmark of the U.S. Extreme Court today – but not so long ago it was rare.


Out went the trusted Tom Brady notice pleading standard and in came the “plausibility standard.” I do not want to give too much away because this will be the subject of a very brutal future article that will not make me popular.


Suffice it to say that for a complaint to pass muster under the “plausibility standard” the allegations must be “plausible” not merely conceivable. The problem is this – what does “plausible” mean? And who decides? The net result is that on a motion to dismiss the Judge becomes a fact finder … the Judge literally becomes the jury … usurps the jury. And decides such sacred jury issues as credibility. None of this is within the purview of a judge when a party elects to have the case tried before a jury – and in civil case any party can decide it wants a jury. Most do. It is the last bastion of justice in Courts.


What is the end result and I will demonstrate this statistically in the future entry: Civil rights cases and other such cases against powerful interests are now the mainstay of what is thrown out on motions to dismiss. The Judge simply says: “I say good man that is just not plausible.” “I say good man it is not plausible that the Department of Justice would team up with private industry to flake people.” You could plead a mountain of evidence. Even cite to and include damning documents. But according to the Court it is just “not plausible.” The Court will even stick its nose so deep into the jury function and perform a credibility analysis on paper on motion to dismiss. It is so downright disgusting


Well you might ask … what are you complaining about? You are trying to get a complaint dismissed. But when a powerful interest is the Plaintiff the “plausibility standard” goes out the window. “I say my good man that is absolutely plausible.” Weeks or months later the Court will then say “And Defendant is not entitled to any discovery from the people that brought the RICO.”


Here is what the majority said about retiring the Tom Brady standard – Judge Souter who lived to regret it – and what my favorite Judge John Paul Stevens said in a skewering dissent. Again I will try to keep it short because we will visit this issue and the real blood and tears it sheds:


We could go on, but there is no need to pile up further citations to show that Conley’s “no set of facts” language [the term for Notice Pleadings from the Supreme Court] has been questioned, criticized, and explained away long enough. To be fair to the Conley Court, the passage should be understood in light of the opinion’s preceding summary of the complaint’s concrete allegations, which the Court quite reasonably understood as amply stating a claim for relief. But the passage so often quoted fails to mention this understanding on the part of the Court, and after puzzling the profession for 50 years, this famous observation has earned its retirement. The phrase is best forgotten as an incomplete, negative gloss on an accepted pleading standard

Then comes Stevens (the real deal):

Under the relaxed pleading standards of the Federal Rules, the idea was not to keep litigants out of court but rather to keep them in. The merits of a claim would be sorted out during a flexible pretrial process and, as appropriate, through the crucible of trial. See Swierkiewicz, 534 U. S., at 514 …
The pleading paradigm under the new Federal Rules was well illustrated by the inclusion in the appendix of Form 9, a complaint for negligence. As relevant, the Form 9 complaint states only: “On June 1, 1936, in a public highway called Boylston Street in Boston, Massachusetts, defendant negligently drove a motor vehicle against plaintiff who was then crossing said highway.” Form 9, Complaint for Negligence, Forms App., Fed. Rules Civ. Proc., 28 U. S. C. App., p. 829 (hereinafter Form 9). The complaint then describes the plaintiff’s injuries and demands judgment. The asserted ground for relief—namely, the defendant’s negligent driving—would have been called a “‘conclusion of law’ ” under the code pleading of old. See, e.g., Cook 419. But that bare allegation suffices under a system that “restrict[s] the pleadings to the task of general notice-giving and invest[s] the deposition-discovery process with a vital role in the preparation for trial.” Hickman v. Taylor, 329 U. S. 495, 501 (1947); see also Thomson v. Washington, 362 F. 3d 969, 970 (CA7 2004) (Posner, J.) (“The federal rules replaced fact pleading with notice pleading”).
Consistent with the design of the Federal Rules, Conley’s “no set of facts” formulation permits outright dismissal only when proceeding to discovery or beyond would be futile. Once it is clear that a plaintiff has stated a claim that, if true, would entitle him to relief, matters of proof are appropriately relegated to other stages of the trial process. Today, however, in its explanation of a decision to dismiss a complaint that it regards as a fishing expedition, the Court scraps Conley’s “no set of facts” language. Concluding that the phrase has been “questioned, criticized, and explained away long enough,” ante, at 16, the Court dismisses it as careless composition.
If Conley’s “no set of facts” language is to be interred, let it not be without a eulogy.That exact language, which the majority says has “puzzl[ed] the profession for 50 years,” ibid., has been cited as authority in a dozen opinions of this Court and four separate writings. In not one of those 16 opinions was the language “questioned,” “criticized,” or “explained away.” Indeed, today’s opinion is the first by any Member of this Court to express any doubt as to the adequacy of the Conley formulation. Taking their cues from the federal courts, 26 States and the District of Columbia utilize as their standard for dismissal of a complaint the very language the majority repudiates: whether it appears “beyond doubt” that “no set of facts” in support of the claim would entitle the plaintiff to relief.
Petitioners have not requested that the Conley formulation be retired, nor have any of the six amici who filed briefs in support of petitioners. I would not rewrite the Nation’s civil procedure textbooks and call into doubt the pleading rules of most of its States without far more informed deliberation as to the costs of doing so. Congress has established a process—a rulemaking process—for revisions of that order. See 28 U. S. C. §§2072–2074 (2000 ed. and Supp. IV).

Game. Set. Fucking Match. Stevens.


What was Twombly all about? It was about protecting big money. Big business was being accused of monopoly. Can you imagine that? And Plaintiffs were suing. Their complaints were withstanding motions to dismiss which meant expensive discovery for big business. We can’t have profits go down for corporations that pay no taxes so let us devise a way to get rid of these cases before they get expensive. Meanwhile Courts could care less about legal expenses of an ordinary citizen.


Now let us look at the plausibility standard as argued in the aforementioned motion to dismiss. It sounds formidable. But remember it is just bullshit if you are an ordinary citizen.

"'To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'" Sarmiento v. United States, 678 F.3d 147, 152 (2d Cir. 2012) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).
"A pleading that offers 'labels and conclusions' or 'formulaic recitation of the elements of a cause of action will not do.' Nor does a complaint suffice if it tenders 'naked assertion[s]' devoid of 'further factual enhancement.'" Iqbal, 556 U.S. at 678 (citations omitted) (Emphasis added).
"Where a complaint pleads facts that are 'merely consistent with' a defendant's liability, it 'stops short of the line between possibility and plausibility of 'entitlement to relief.'"
Id. (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007)). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. (citations and internal quotation marks omitted) (Emphasis added).
The district court is "not bound to accept as true a legal conclusion couched as a factual allegation." Id.
In considering a motion to dismiss for failure to state a claim, the Court should follow a "two-pronged approach" to evaluate the sufficiency of the complaint. Hayden v. Paterson, 594 F.3d 150, 161 (2d Cir. 2010). "A court 'can choose to begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth.'" Id. (quoting Iqbal, 556 U.S. at 679). "At the second step, a court should determine whether the 'well- pleaded factual allegations,' assumed to be true, 'plausibly give rise to an entitlement to relief.'" Id. (quoting Iqbal, 556 U.S. at 679).

Wow. Sounds formidable. Combine it with the RICO pleadings standards and it sounds like you better have a decent case before you accuse someone of being a criminal; ruining their reputation; destroying their business and costing them hundreds of thousands of dollars plus in legal fees. I think Rule 11 says that too.


But if you’re a powerful corporation … hey … not to worry. The plausibility pleading standard is really just bullshit. Judge preference is everything; and judges prefer powerful interests. “God fights on the side of the bigger armies” said Napoleon. So does justice.


Statistically that is where the federal bench comes from – powerful interests; and the Second Circuit will back its District Court judges’ preferences to all manners of extreme except in rare cases – if a District Court sustains a Bivens complaint against the U.S. Attorney for example.

But just for fun let us see how the RICO/Plausibility standard wreaks havoc on garbage pleadings. This again is taken from the memorandum of law I recently submitted to the EDNY regarding a real case:

“When the complaint alleges fraud, Rule 9(b) requires that somewhat more of counsel's investigative efforts be revealed so that the number of unfounded "strike suits" is minimized and defendants are protected "from the harm that comes to their reputations or to their goodwill when they are charged with serious wrongdoing." Segan v. Dreyfus Corp., 513 F.2d 695 (2d Cir. 1975) (citations omitted)
We note there is every species of conclusory incantation and speculation pled in the Complaint presented as fact as already demonstrated. But I cannot contain myself. So for example, a pleading that provides justification for other pleadings in the Complaint states:
Many of the medical offices where Smith controls the use of the premises through purported subleases are known “medical mills” suspected of operating under the ownership and control of unlicensed laypersons – such as the Management Defendants [Smith and Smithco] – and that house a revolving door of hundreds of fraudulent No Fault providers operating in accordance with schemes similar to the scheme at the Elmont Clinic.
(Paragraph 71)
The above pleading referencing unknown medical offices at multiple unknown locations, concluding that they are all “medical mills” wherein hundreds of medical providers perpetrate fraud “in accordance with the Elmont Clinic [the location upon which the Complaint is based]” – is rank speculation without a scintilla of supporting factual pleadings. This is not worthy of a Walter Winchell column. The word “controls” is not a magical incantation that turns a cesspool pleading into a mountain stream of detailed factual allegations.

By the way Walter Winchell (April 7, 1897 – February 20, 1972) was a syndicated American newspaper gossip columnist and radio news commentator. Originally a vaudeville performer, Winchell began his newspaper career as a Broadway reporter, critic and columnist for New York tabloids. He rose to national celebrity in the 1930s with Hearst newspaper chain syndication and a popular radio program. He was known for an innovative style of gossipy staccato news briefs, jokes and Jazz Age slang. https://en.wikipedia.org/wiki/Walter_Winchell


Conclusion


Consider the composition of the federal bench. Look at the federal bench and you will see a striking lack of professional diversity among the lawyers who currently serve as federal judges. According to a study published by ACS several years ago [for the piece addressing the plausibility standard we’ll give up to date data], as of 2008, the federal appellate bench was "dominated by judges whose previous professional experience is generally corporate or prosecutorial." The study examined the biographies of 162 judges listed in the Almanac of the Federal Judiciary. It found that 85% of the judges had worked in private practice, and also noted that it was "clear from the judges’ biographies that a sizable number of them worked for large, well-known firms that tend to represent corporations." Meanwhile, only 3% - five judges total out of 162 - had substantial legal experience working for non-profit organizations. And none of those five judges had worked for such an organization more recently than 1981! Similarly, only 3% of the judges had worked for organizations or government agencies that enforce civil rights. Only three judges TOTAL appeared to have worked for organizations representing low income Americans, and only one judge—one out of 162!—appeared to have substantial experience litigating consumer protection cases.

Just another day of rich man’s justice.


What is left for average citizens? Perhaps something more drastic than merely voting.






Many Americans consider the United States Supreme Court to be a hallowed ground of goodness; an all-knowing collection of fatherly and motherly wise men and women who protect the lives and freedoms of citizens. We see the Supreme Court’s decisions as the rule of law that cannot be challenged in terms of intelligence or virtue. Americans could not be any more mistaken. Like many Courts in general the United States Supreme Court is not only partisan and beholden to wealthy interests – it was put in place by politicians – but the Supreme Court is also often times EVIL. If you doubt this let’s look at some of what the Supreme Court has done to American Citizens. We’ll do this by looking at the decisions of the Court itself. That’s the best evidence. Let’s see if some of you might want to defend the Court’s actions.

In Buck v. Bell the Supreme Court found that it was legal for states to sterilize citizens – even teenagers. As a result some 70,000 Americans were forcibly sterilized during the 20th century. The victims of this state-sponsored sterilization included people who had been labeled "mentally deficient;" as well as the deaf, blind or diseased. Minorities and poor people were frequently the target of these – scalpels cutting into genitals – forced sterilizations. Women that were accused of being "promiscuous" were also a favorite focus of the butchery. With regard to Carrie Buck contrary to the Court there were three generations but no imbeciles except the Court.



In Dred Scott v. Sandford the Supreme Court held that African Americans were not human but, rather, property. Of course as property these African Americans could be sterilized, bred, raped, murdered, worked to death and otherwise subjected to horrors. This decision was never reversed by the Court. It took the Civil War to reverse the decision. Lately we’ve seen that there are a number of Americans who would love to return to the Dred Scott days.



In Lochner v. New York the Supreme Court reversed a New York law that limited the amount of hours a person could work in bakeries. At the time the conditions in bakeries were excessively hot and harsh. The Court said that law meant to protect workers violated the Fourteenth Amendment. It is ironic that the Fourteenth Amendment was a post-Civil War amendment designed to make slavery in each of the individual states illegal. The decision marked the beginning of what is known as the Lochner Era – a period of time where laws designed to protect workers were ruled to be unconstitutional. This was a time where workers literally died by the dozen or more in fires, coal mine disasters, etc. as well as work related poisoning. Many Americans want to see the return of the Lochner Era.




In Kelo v. City of New London the Supreme Court decided that it was perfectly okay for a corporation to get a city to forcibly eject citizens from their rightfully owned property – and tear down their houses – in order to build a shopping mall. The reasoning behind the decision was the argument that the mall was for the public’s benefit. Undoubtedly the folks that would get the most benefit were the owners of the corporation who would make tons of money off the mall. The politicians who probably took bribes also benefited. Many Americans have enormous love for corporations and their right to do whatever they want to other people.




Gun advocates are fond of claiming that gun ownership “is part of my rights.” When pressed many don’t know where these rights come from but most cite to the Second Amendment of the United States Constitution. According to the gun advocates the Second Amendment guarantees them “the right to bear arms” or the “the right to have guns” or something similar. Almost no gun advocates have even bothered to read the Second Amendment that they cite to as the justification for all the killing of children and worshippers that happens in this country because of guns – weapons to be exact. High capacity rapid firing death machines. Well I am going to give them the opportunity to read the Second Amendment. Here it is:

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

Weapon advocates are quick to seize on the following language:

the right of the people to keep and bear Arms, shall not be infringed.

But that is not all of the language. That is not even the most important language. What starts it all? Here is the most important language:

A well regulated Militia, being necessary to the security of a free State, …

The above language – “A well regulated Militia …” – serves as the premise and the preface for what follows. In other words the reason that people have “the right … to keep and bear arms” is because “A well regulated Militia, [is] necessary to the security of a free State …” Here it all is again. Don’t just skip to the end. Read the whole thing.

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

The right to “keep and bear arms” is for “a well regulated Militia” so that the “Militia” can maintain “the security of a free state.” It’s not for crazy bastards who shoot people up and it’s also not for the heck of it.

Back when the Second Amendment was written militias were common place. These militias were made up of citizens who volunteered. They would practice on off hours such as evenings and weekends. They were not provided with any weapons. They had to bring their own. Hence the right to “bear arms” for a “well regulated Militia.”

The militia was a line of defense against the British in the revolutionary war. Hence the language: “the security of a free State.” Remember back then the United States was a loosely connected series of States where most of the power resided – in the individualized states.

What is the equivalent of the Militia today? The National Guard is a perfect answer. The police and their equivalent – sheriff, highway patrol, FBI, etc. – if you stretch it. What are all of these people doing with weapons? Why are they all saying it’s their Constitutional right? For goodness sake read the Second Amendment. The false portrayal of the Constitution and the phony connection between guns and patriotism is annoying.

But wait. Speaking of “false” and “phony” there is the deceased Supreme Court Justice Antonin Scalia. The father of intellectual dishonesty. Scalia has rewritten the Second Amendment. He’s given the whack job, Russian infiltrated White Nationalists and NRA a Second Amendment that simply says:

… the right of the people to keep and bear Arms, shall not be infringed.

Instead of

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

The man besides deleting the main part of the Second Amendment written by our so called “founding fathers” also added a bunch of stuff to the Second Amendment that was never there.

Let us talk about this for a little bit with the help of Professor Denis Brown who I will quote in places.As we have discussed for most of its history the Second Amendment protected a collective right to gun ownership connected to service in the militia. Again this is clear from the text. And it was actually the law of the land for many many years.

But in 2008, the Supreme Court found in District of Columbia v. Heller that the amendment instead supports an individual right to own a gun for any lawful purpose, a right that has nothing to do with military service.

In his opinion in Heller, Justice Antonin Scalia, who said that we must understand the Constitution’s words exactly as the framers understood them, disconnected the right to keep and bear arms from the need for a well-regulated Militia, in part because he concluded that the phrase “bear arms” did not refer to military contexts in the founding era. By Scalia’s logic, the natural meaning of “bear arms” is simply to carry a weapon and has nothing to do with armies. He explained in his opinion:

Although [‘bear arms’] implies that the carrying of the weapon is for the purpose of ‘offensive or defensive action,’ it in no way connotes participation in a structured military organization. From our review of founding-era sources, we conclude that this natural meaning was also the meaning that ‘bear arms’ had in the 18th century. In numerous instances, ‘bear arms’ was unambiguously used to refer to the carrying of weapons outside of an organized militia.

Scalia was lying. He had a penchant for lying. That has been proven. As reported by Dennis Baron, a professor of English and linguistics at University of Illinois at Urbana-Champaign.

Two new databases of English writing from the founding era confirm that “bear arms” is a military term. Non-military uses of “bear arms” are not just rare — they’re almost nonexistent.
A search of Brigham Young University’s new online Corpus of Founding Era American English, with more than 95,000 texts and 138 million words, yields 281 instances of the phrase “bear arms.” BYU’s Corpus of Early Modern English, with 40,000 texts and close to 1.3 billion words, shows 1,572 instances of the phrase. Subtracting about 350 duplicate matches, that leaves about 1,500 separate occurrences of “bear arms” in the 17th and 18th centuries, and only a handful don’t refer to war, soldiering or organized, armed action. These databases confirm that the natural meaning of “bear arms” in the framers’ day was military.
But we shouldn’t need big data to tell us this. “Bear arms” has never worked comfortably with the language of personal self-defense, hunting or target practice. Writing about the Second Amendment in 1995, historian Garry Wills put it succinctly: “One does not bear arms against a rabbit.”
And in 1840, in an early right- ­to-bear-arms case, Tennessee Supreme Court Judge Nathan Green wrote: “A man in the pursuit of deer, elk and buffaloes, might carry his rifle every day, for forty years, and, yet, it would never be said of him, that he had borne arms, much less could it be said, that a private citizen bears arms, because he has a dirk or pistol concealed under his clothes, or a spear in a cane.”
Then there’s this exchange during oral arguments in Heller. Solicitor General Paul D. Clement said that “bear arms” meant to carry them outside the home. Justice David Souter asked him: “But wait a minute. You’re not saying that if somebody goes hunting deer he is bearing arms, or are you?”
Clement replied, “I would say that and so would [James] Madison and so would [Thomas] Jefferson.”
But Souter wasn’t convinced: “In the 18th century, someone going out to hunt a deer would have thought of themselves as bearing arms? I mean, is that the way they talk?”
Clement finally conceded that no, that was not the way they talked: “Well, I will grant you this, that ‘bear arms’ in its unmodified form is most naturally understood to have a military context.”
Souter did not need to point out the obvious: “Bear arms” appears in its unmodified form in the Second Amendment.

Barron also notes the following about Scalia's opinion:

Still, the Supreme Court based its interpretation of the Second Amendment on more than an incorrect definition of “bear arms.” According to Scalia, the framers “undoubtedly thought” the amendment protected the universal right of self-defense, even though nowhere does the Constitution mention self-defense. It doesn’t mention hunting, either.

A dissenting opinions best summarize Scalia’s decision. Justice John Paul Stevens stated that the court's judgment was "a strained and unpersuasive reading" which overturned longstanding precedent, and that the court had "bestowed a dramatic upheaval in the law".

So this man … this Scalia … who professes to give us the original meaning of the Constitution fed us nothing more than lies. He decided not based upon the law, but upon the politics and money of the NRA and the right wing. He used bullshit to justify his decision and made a mockery out of the Constitution and the Court.

Scalia was reportedly found dead in bed with a pillow shoved partially down his throat. Perhaps this fraud of a perverse man was killed in some sort of sadomasochistic romp. Whatever the case … Scalia – the prince of Catholicism – is burning in hell. The Court; the NRA; the Republican Party; Trump and all the gun nuts have dipped their hands deeply into the blood of children.

And what of the children of Sandy Hook. Imagine that you are the father or mother of one of those poor children. You look down on your precious child’s mangled body torn ragged by bullets. What would you feel?

If I were the father or mother of a Sandy Hook child I would feel an uncontrollable rage. That rage would explode ... sometime ... someplace ... in a very purposeful fashion. With good cause. And I wouldn't need a gun.

We cannot talk about this anymore. We need to do something. In intelligent States press your law makers for the toughest gun laws that can be written. Then let the Supreme Court strike them down. Ignore the Supreme Court’s decision and enforce those laws anyway. When federal authorities are called in to stop the enforcement of the gun laws fight the federal authorities on the streets.

You are fighting for your children’s lives.






This is just a sample of despicable actions taken by the Supreme Court. Let this be our guide as we explore court proceedings in future installments in all Courts

Updated: Mar 3

PART I: Oh Suffolk County ... HOW Fucked Up Are You


This is part one in a series covering the degeneracy of Suffolk County – not just law enforcement and politics – but the county itself … all of it. This first part contains necessary background. Most of the material in this first part is all public knowledge appearing in Court filings and multiple news stories. But some of the material below has never seen the light of day. That material is heavy. All of it is heavy. In the coming installments there will be nothing but factual material. All of it disturbing. Much of it revealed for the very first time.


So let us start.


There is really not much good you can say about a county where the Chief of Police does four years in Federal Prison for torturing and beating a young man who is addicted to drugs – one of the many in “affluent” Smithtown. The beating and torture took place in a Smithtown/Hauppauge precinct house and was viewed by droves of police officers and detectives. As it turned out the addicted young man – Christopher Loeb – swiped the Chief of Police’s duffel bag from the Chief’s unlocked SUV. The bag contained sex toys and unspeakably heinous porn. The Chief of Police – the infamous James Burke who also resides in Smithtown – had a long history of rough kinky sex with drug addicted prostitutes. Burke actually engaged in drug trafficking while on duty with one of the prostitutes. These prostitutes also swiped things from him too, like his service revolvers – all of which was known by higher ups. Yet his career sky rocketed.


As Burke bashed his fist into Loeb’s face Burke screamed death threats at Loeb, promising to give him a “hot shot.” A “hot shot” is a fatally powerful dose of heroin. The use of the term by Burke implies that a "hot shot" is something that Burke has either done before or seen done before. When Loeb shot back that Burke was a pervert because Burke kept heinous porn and sex toys in his vehicle, the police chief’s attack became insane. Another detective had to pull Burke off.


“Boss that’s enough, that’s enough,” the officer said.


Loeb settled his civil rights case with Suffolk County for 1.5 million tax payer dollars. Meanwhile Suffolk taxpayers fork over $145,485.00 a year to Burke to pay Burke’s pension. Suffolk County law enforcement is the gift that always keeps taking from Suffolk County tax payers.


If the above isn’t bad enough the County’s District Attorney is standing trial – as I write this – in Federal Court for covering up the torture/beating and covering up the cover up; in a case that he should have prosecuted. Suffolk voters gave this man four bipartisan terms – he was cross endorsed by Republicans and Democrats.


To make matters worse the Chief of Police – Burke – is a suspect in a string of serial sex killings of sex workers. These killings have strewn a section of prime Suffolk County beach land with rotting bodies and body parts literally hanging from bushes and low lying trees.


Meanwhile the former Police Commissioner and District Attorney squabbled about whether there even was a serial killer. So far at least 17 victims have been identified: 15 female sex workers; A male sex worker dressed as a female; And a toddler – a slain female sex worker's child.


Despite all of the above District Attorney Thomas Spota had this to say:


"It is clear that the area in and around Gilgo Beach has been used to discard human remains for some period of time," As distasteful and disturbing as that is, there is no evidence that all of these remains are the work of a single killer."


It has now been admitted by all relevant law enforcement that it is the work of a single serial killer.


District Attorney Spota has done much to protect the identity of the killer. Spota and Burke literally kicked the federal government – the FBI and its profilers and first rate forensic teams – as well as the U.S. Attorney’s Office, off the investigation of the murders just as progress was being made. The progress included a theory that the killings were probably committed by someone who worked in law enforcement. Yet Suffolk County law enforcement simply stopped working with the “Feds” – this included the sharing of information. The infiltration of federal law enforcement in Suffolk – the Eastern District of New York – by Suffolk County politics is going to be discussed in this series. The point is that the so called “feds” were probably easy to get rid of.


Right now the Gilgo Beach serial killer case is one of the worst unsolved crimes in the nation. No one is really investigating it. The killings did suddenly seem to stop when Burke went to prison. Well he’s out now. And one can almost see the sex killer prancing around the beaches and manicured lawns of Suffolk County dumping body parts.


District Attorney Spota and Chief Burke also eliminated the Eastern District – a.k.a. – “Feds” from the active gang task force because they did not want them near the corruption; beatings; illegal wiretaps; politically motivated false arrests and malicious prosecutions; mayhem and murder that we are going to cover. As a result MS-13 exploded in Suffolk County and the bodies of Hispanic and African American teens were spread across the less “affluent” parts of Suffolk County. All of the victims were good kids working to have a future. No one really cared except their loved ones.


This is the same District Attorney – Spota – that was friends with a horror show of a man that owned a nursing home service. In March 2007, Spota indicted ten nurses and their immigration attorney after the nurses quit their jobs at Avalon Gardens Rehabilitation and Health Care Center in Smithtown – again Smithtown; it seems that my town is the very epicenter of shit. The nurses, Filipino immigrants recruited by the nursing home company SentosaCare of Woodmere, resigned together in April of 2006, because of bad working conditions and disputes over pay and benefits.


SentosaCare officials met with Spota – their friend – the next month. The nurses right to quit – can you imagine “quitting a job” has to be declared a right – had earlier been approved by the State Education Department. That is the agency tasked with regulating health care providers. Nevertheless the nurses were arrested and charged with endangering the welfare of the nursing home’s clients. The immigration attorney, who advised the nurses of their right to resign, was also charged with criminal solicitation. These were the first such charges in the state, and they sparked an outcry from groups in the Philippines and in New York.


After lengthy proceedings the case reached the state's Appellate Division. The Appellate Division declared that the criminal proceedings were unconstitutional because they violated the nurses' rights to be free from slavery.


Hundreds of thousands of lives were lost proving the same point over a century earlier and we have a Constitutional Amendment that is over a century old that says that slavery is illegal.


But according to DA Spota and the voters who supported him slavery was legal in Suffolk County.


Suffolk is a county that draws lines on maps to designate where blacks can live; where Hispanics can live; where Asians can live; and areas that are off limits to all people except whites. It is a truly unique place that should be transported to rural Kentucky during Reconstruction.


There are many who say that Spota and Burke are “just the tip of the iceberg.” They are wrong. Spota and Burke are but a crystal of ice on the continent of Antarctica.


In this series we are going to go deep into what is going on in Suffolk. Over the next installments we are going to concentrate on two actual cases that I worked on. First these two cases are a good vehicle for exposing Suffolk County’s perverse culture of degeneracy because they demonstrate that such depraved debasement is but common place. Secondly the cases opened up a window into acts of grotesque inhumanity in high profile cases.


For example in one of the cases that I worked on I had the opportunity to interview a witness that had much to tell about a totally unrelated case that made headlines. The case was even featured on true crime television shows and news shows. That is the case of Martin Tankleff.


I spoke with a man named Joseph “Joey” “Guns” Creedon.


Before I spoke to Creedon the man had made numerous admissions to witnesses in the 440 hearing seeking to exonerate Martin Tankleff for the murder of his parents Seymour and Arlene Tankleff. The murders occurred when Mr. Tankleff was a teenager decades ago. In fact Creedon had boasted for decades to many people – including some I talked to – about being the actual killer. In fact, Creedon admitted to the killings even as he burned his blood stained clothes in the first couple of hours after the murders.


Creedon’s accomplices also admitted to their roles in the murders and fingered Creedon and another accomplice as the actual killers. There were look outs and a get away driver, etc.


Meanwhile a young man languished in prison for 17 years for a crime that he did not commit. He was framed by Suffolk Law Enforcement for money. He was kept in prison by District Attorney Spota because Spota had represented the Suffolk County detective, K. James McCready, that framed Martin Tankleff. Spota had also represented the drug dealing father and son duo that hired Creedon and his accomplices to kill Seymour and Arlene Tankleff – that would be Jerry Steuerman and his son Todd Steuerman. Jerry and Todd also hired their friend and fellow Spota client, Suffolk Police Det. K. James McCready to frame Martin Tankleff – much more of this sordid nearly four decade conspiracy of sleaze to come. In fact there are trusted sources that recount that Spota’s law partner – a former Suffolk County prosecutor – received his fatal dose of cocaine from the Steuermans. I guess that would be a "hot snort." That does not say much about Spota’s private law practice and what the Steuermans might have had on Spota who is a well known substance abuser.


But when I spoke with Selden’s own Joey Guns Creedon it was about another case. But the ghosts of Tankleff lingered like an 800 pound gorilla. Joey Guns despite warnings from his attorney had to talk. With regard to his many admissions that he murdered the Tankleffs, Joey Guns Creedon discussed a visit by a high profile Suffolk County Detective who is now an elected government official – let us call him “Cowboy” because that was the nick name our legal team gave him.


Creedon told me that Detective Cowboy and other members of the Suffolk County Police Force apprehended Creedon and beat him. Creedon was told by Cowboy and the cops to keep his mouth shut about the Tankleff killings – to stop claiming that he killed the Tankleffs for the Steuermans – or Creedon would face a far more violent consequence ... his death.


Creedon stated in part: "with that thing they threw in the big guns right away to come talk to me ... you know what I mean ... I want to keep a low profile. I am almost 50 now."


Creedon then once again admitted to the killing. With regard to the detective Cowboy that visited him, Creedon finished by stating: "I can give you a lot on [the detective]. That guy did a lot of bad things. He kicked down a lot of doors without a warrant and searched through things. I don't want to talk too much in the open.” I corroborated all of the above as we will see.


District Attorney Spota and Police Chief Burke are probably two of the most disgusting evil humans on earth. But what can you say about the County that put them in power. Not just the political machines and the police unions. But the rank and file citizens of this county called Suffolk. Many of these people – far from all but very many – lack the mental capacity to handle the responsibilities of living in a democracy. They are a people in search of a trailer park; a cousin to fornicate with; and some skoal to spit in a jar. Then there are the rest of us that are forced to sit with them in the stands at our children's sporting events as they scream obscenities and criticize everyone from the officials to the coaches -- to your own child.


For the most part names will be changed to protect the innocent from retaliation. The fear is palpable to this day. The same machine controls Suffolk. The new District Attorney Timothy Sini was the former Police Commissioner before he became District Attorney. Before being Police Commissioner Sini was an Assistant US Attorney from the Eastern District. Sinni was made District Attorney by the same corrupt party boss and police unions.


In any event the names of most of the high profile officials will be divulged. Somewhere down the road every public official will be named.


Stay tuned …


Would you like to see a real Federal Probe of Suffolk County -- not one done by the Eastern District who lives in Suffolk and who's members have established themselves in Suffolk County politics. I am speaking about a probe by me and my Congressional Office -- start by voting for:



1
2