UDO BIRNBAUM

Plaintiff-Appellant

v. No. 99-11180

RICHARD RAY, et al

The undersigned certifies that the following listed persons have an interest in the outcome of this case. These representations are made in order that the judges of this Court may evaluate possible disqualification or recusal.

(continued)

The Plaintiff-Appellant, UDO BIRNBAUM, respectfully requests oral argument for the reasons fully stated in Appellant's Brief. Oral discussion of the facts and the applicable precedent would benefit the Court.

CERTIFICATE OF INTERESTED PERSONS …………………………… 2

REQUEST FOR ORAL ARGUMENT ………………………………….… 3

TABLE OF CONTENTS ………………………………………………….... 4

TABLE OF CITATIONS …………………………………………..……….. 6

STATEMENT OF JURISDICTION …………………………………….…. 6

STATEMENT OF THE ISSUES ………………………………………….. 7, 8

STATEMENT OF THE CASE ……………………………………….……. 8

Proceedings Below ……………………………………………….….. 8

Statement of the Facts ……………………………………..…………. 9

SUMMARY OF THIS REPLY …………………………………………… 10

THIS REPLY …………………………………………………………….… 11

THE LAW IS CLEAR ……………………………………………… 11

PLAINTIFF'S PLEADINGS HAD SUFFICIENT SPECIFICITY …. 13

THE RECORD SHOWS LYING AND FRAUD …………………… 16

"JUDGMENT" …………………………………………….… 17

"ORDER" …………………………………………………..… 18

"DEFENDANT KERRY YOUNG'S MOTION" ……… …… 20

"ORDER" …………………………………………………..… 24

CONCLUSION …………………………………………………..…….….… 25

PRAYER …………………………………………………………………… 26

CERTIFICATE OF SERVICE ……………………………………..……..…. 28

CERTIFICATE OF COMPLIANCE ………………………………..…..…… 28

47 F.3d 1427 (5^th Cir. 1995) ………………………………. 7, 8, 10

Defendants / Appellees submitted Schultea type motions, even though not all of them even qualified for such, because they are not public officials.

As previously shown in Appellant's Brief, the Dallas District Court did not follow Schultea, as shown in Appellant's issues. Despite all of this, these Appellee's in this Fifth Circuit do not even address Schultea, not a single one of them. Schultea is not in their Table of Authorities!

Issues brought by Appellant were as follows:

ISSUE ONE: Whether the order from which appeal is taken in this civil RICO case is appealable based on the termination of the litigation, or whether there exists some other basis of appellate jurisdiction.

ISSUE TWO: Whether Plaintiff's Complaint gave fair notice and rested on more than conclusions alone.

ISSUE THREE: Whether the Defendants deceived the Court and failed to engage the issues in the Plaintiff's Complaint.

ISSUE FOUR: Whether the Plaintiff's "Schultea" Reply was tailored to the defense of immunity and supported with sufficient precision and factual specificity to raise a genuine issue as to the illegality of the defendants' conduct at the time of the alleged acts.

ISSUE FIVE: Whether the Court failed to determine what the current applicable law was, and what the real facts were.

ISSUE SIX: Whether the law was clearly established at the time of the alleged violations.

ISSUE SEVEN: Whether the Court erred in using 12(b)(6) in dismissing a RICO complaint alleging intentional judicial trespassing.

ISSUE EIGHT: Whether the Court erred in not addressing the injunctive relief sought by Plaintiff.

ISSUE NINE: Whether the Magistrate did not look beyond the Defendants' lies for his Findings.

ISSUE TEN: Whether the Court erred in not abiding by the rules of procedure.

Plaintiff Pro Se filed Complaint (Docket Ref. 1) Mar. 30, 1999 under 18 U.S.C. § 1964(d) Civil Rico. Starting April 26, 1999 various defendants entered 12(b)(6) "Schultea" motions (Docket Ref. 15, 16, 18, 22, 23, 24, 30) claiming absolute immunity. Plaintiff, overwhelmed by certain parties' representation by the Texas Attorney General, retained attorney and submitted First Amended Complaint on July 19, 1999 (Docket Ref. 40), supported by Memorandum (Docket Ref. 41) and Affidavit (Record Excerpt 6).

The Magistrate made a Finding on September 7, 1999 (Docket Ref. 49, Record Excerpt 4), to which Plaintiff timely objected on Sept. 17, 1999 (Docket Ref. 50). Court entered Judgment (Docket Ref. 52, Record Excerpt 2) "granting motions to dismiss under 12(b)(6)", and based on its making no reference whatsoever to Plaintiff's Objections, did not at that time have knowledge of Plaintiff's timely Objection (Docket Ref. 50) to Findings (Ref. 49), and last defendant who had not switched over to 12(b)(6) until Sept. 17, 1999 (Docket Ref. 51). Clerk entered "case closed" on Sept. 21, 1999.

Plaintiff submited Notice of Appeal on Oct. 14, 1999 (Docket Ref. 55, Record Excerpt 3).

No hearings were held in the Dallas District Court.

Defendants / Appellees submitted Schultea type motions, even though not all of them even qualified for such consideration!

As previously shown in Appellant's Brief, the Dallas District Court did not follow Schultea, as shown in Appellant's issues. Despite all of this, these Appellee's in this Fifth Circuit do not even address Schultea, not a single one of them. Schultea is not in their Table of Authorities!

Opposing counsel have failed to address the issues in Appellant's Brief. The Record shows lying and fraud in the inducement, raising a genuine issue of material fact of the RICO enterprise reaching into the Dallas District Court. Appellant prays for relief.

To this Honorable Fifth Circuit:

All opposing counsel have failed to address Plaintiff/Appellant's issues as they bear on their claims for immunity. Clearly none of opposing counsel has engaged the issue of "honest service", and the law upon it, specifically under Brumley. Neither is opposing counsel addressing the issue of the District Court's process denying me my substantive rights under RICO, in violation of the Rules Enabling Act, and RICO case law, as presented in Appellant's Brief.

(Appellant's Issue Six)

• The law was clearly established at the time of the alleged violations

(None of opposing counsel responded to this issue.)

This is not a garden variety Civil Rights suit upon a single act by a single judge or clerk at a single time or a place. This suit is about a pattern of defrauding of honest service to extort legal fees, and a pattern of judicial trespassing to effectuate the scheme.

I brought this RICO suit to stop this perverted use of the judicial machinery itself. The issue before this Court is to clearly establish at what point conduct, by whosoever, even judges, is no longer objectively reasonable, i.e. it collides with substantive law, namely the mail fraud statutes and RICO, and is dangerous to the public.

Defrauding of honest service to facilitate a scheme to extort legal fees is not "objectively reasonable". Neither is judges and counsel not knowing the meaning of a unanimous verdict of zero damages. (See First Amended Complaint). Neither is it "objectively reasonable" for the matter in the 294^th District Court to still be ongoing, to this very day!

This Court has already spoken in Brumley (116 F.3d 728, 733 [5^th Cir. 1997]) about defrauding of "honest service". Yet these defendants wrongly are telling this Court that the law does not apply to them, i.e. that deprivation of honest service does not include deprivation of honest judicial service.

Nothing is more dangerous than high public officials knowingly violating the law. Quoting Butz v. Economou (438 U.S.478):

None of opposing counsel have responded to the issue of defrauding of "honest service", and the issue of violations of clearly established law.

(Appellant's Issue Four)

• The Plaintiff's Schultea Reply was tailored to the defense of immunity and supported with sufficient precision and factual specificity to raise a genuine issue as to the illegality of the defendants' conduct at the time of the alleged acts

(None of opposing counsel responded to this issue.)

This Cause is about racketeering, defrauding of honest service, judicial trespass, and perversion of the judicial process in general.

I have shown how I complained of fraud in the underlying matter from the beginning, without these defendants ever inquiring into the matter. My ever louder calls for help, without the defendants ever citing me for contempt, or inquiring into these matters, indicates that these Defendants knew about, and were indeed part of the "must win" conspiracy upon me to extort legal fees by defrauding me of honest service, exactly as I allege.

I repeatedly called for the Justice Department, the Attorney General, the District Attorney, etc., and complained from the beginning, way back in 1995 :

95. "refer these matters to the U.S. Justice Department"

97. "reports of perjury and obstruction are being suppressed"

99. "I plead duress by official oppression at this hearing"

99. "Unconscionable acts by and among judge Wallace, Judge Zimmermann, etc. have made the Court Process into a weapon for malicious prosecution of a false cause upon me"

As this Court can clearly see, I complained from the beginning of fraudulent process and of failure to provide honest judicial service.

(Appellant's Issues Three, Five, Ten)

• The Defendants deceived the Court and failed to engage the issues in the Plaintiff's Complaint
• The Court failed to determine what the current applicable law was, and what the real facts were
• The Magistrate did not look beyond the Defendants' lies for his Finding

As this case now makes its way to the Fifth Circuit, the RICO enterprise to extort legal fees is alive and well in and about the 294^th District Court in Van Zandt County, Texas, exactly as I allege, without the Dallas Federal Court ever having addressed anything at all in my complaint. The belated attempt to pass off a mere rubber stamp (Docket Reference 53, record excerpt 5) as a de novo determination indicates that indeed my entire complaint may have been kept from Judge Buchmeyer! (Appellant's Brief, Issue Ten).

Evidence that the operative facts in this Cause were indeed kept from Judge Buchmeyer lies in the below-mentioned documents (Docket references 52, 53, 51, 59) :

(Docket reference 52, Record Excerpt 2)

Plaintiff timely entered Objection to Magistrate's Findings late Friday September 17, 1999. Judge Buchmeyer signed this document on Monday, September 20, 1999. With a two day weekend in there, there simply was no time to make a de novo determination, as described in detail in Appellant's Brief, Issue Ten (page 57-59). Further this document itself shows that Judge Buchmeyer was absolutely unaware of my Objection, as indicated by his first sentence of "The Court has heretofore entered its Findings in this case", which was not the case.

Yet despite the evidence presented in Appellant's Issue Ten, all counsel in their responses emphatically tell this Appeals Court just the opposite:

• "The district court granted Defendant Jones' and Defendant Ray's 12(b)(d) motions and dismissed the case after a de novo review of Birnbaum's Objections to the Magistrate Judge's Report and Recommendations" (Richard L. Ray's Brief page 2)

• "The district court granted the Defendant Judges and Defendant District Attorneys 12(b)(6) motions and dismissed the case after a de novo review of Birnbaum's Objections to the Magistrate Judge's Report and Recommendation." (Daniel E. Maeso, Leslie B. Vance, Brief pages 2 and 3)
• "The District Court granted Defendants Judges' and Defendant Richard Davis' 12(b)(6) motions and dismissed the case after a de novo review of Birnbuam's Objections to the Magistrate Judge's Report and Recommendation." (Richard D. Davis, pages 2 and 3).

• "The District Court adopted the Magistrate Judge's findings and filed a "Judgment" on September 21, 1999. The plaintiff's objections were overruled by Order dated September 27, 1999." (Van Cleef page 3)

There is strong indication, as shown above, that Judge Buchmeyer had not been fully informed at the time he signed this document. There is also strong indication that he was never timely informed of the error he had been caused to make.

(Docket reference 53, Record Excerpt 5)

The "Order" (emphasis as in original), without any reference to the thirteen (13) specific objections, in precise language including Case Law, in the fourteen (14) page document, without ever mentioning the issue of de novo, or any issue in the Cause, states:

The PLAINTIFF'S OBJECTIONS TO FINDINGS, CONCLUSIONS AND RECOMMENDATIONS OF THE UNITED STATES MAGISTRATE JUDGE (filed September 17, 1999) are without merit, and they are OVERRULED.

ENTERED: SEPTEMBER 24, 1999

JERRY BUCHMEYER (RUBBER STAMP)

This is the only document by the Court referring to my "Objection". Yet it has no case specific information, whatsoever!

If this document is indeed Judge Buchmeyer's de novo determination, it clearly should not come out of the Clerk's Office, as indicated by a mere Buchmeyer stamp.

Furthermore, the cause number affixed was 3:99-CR-0696, not the correct 3:99-CV-0696. Temporarily classifying me as an in forma pauperis criminal objector among a stack of criminal cases would provide cover for a clerk having used a Buchmeyer stamp on it. It would also assure that this document would never appear in Buchmeyer's file, because of the wrong cause number!

There is strong indication tampering. Such tampering is also evident in a later to be described Buchmeyer "Order".

Yet all counsel insist to this Appeals Court that I have received a de novo determination! (See prior issue, "Order"). Counsel L. Charles Van Cleef furthermore states:

(Docket Reference 51)

This was a last moment switch to a 12(b)(6), like all the other nine defendants, whose motions had however already been before the Court for five months! But this motion was not entered until Friday, September 17, 1999. But by the immediately following Monday, September 20, 1999, Judge Buchmeyer had already let the other nine defendants out with his "Judgment"!

What is noteworthy is the attempt to get this motion directly to Magistrate Stickney, without going through Judge Buchmeyer first, and having him refer it to Stickney, just like he had done individually on all the other 12(b)(6) motions previously. Of interest is the note "Referred to Magistrate Stickney" directly under the cause number, directly on the motion.

Of course this motion had not been referred to Magistrate Stickney, and he of course could not act on it, and did not! And of course Judge Buchmeyer would not timely act on it either, for it did not get to him.

Further evidence that nothing ever got to Judge Buchmeyer lies in letters by Dolena Westergard's (Young's counsel) to the Fifth Circuit, and directly to Judge Buchmeyer. The Record indicates that these letters, of course, never got to Judge Buchmeyer, leaving her hanging, as to whether she was in or out of the Dallas Federal Court, as the following letters show:

Charles R. Fulbruge III, Clerk

United States Court of Appeals

For the Fifth Circuit

600 Camp Street

New Orleans, LA 70130

Dear Mr. Fulbruge:

I represent Defendant Kerry Young in the district court action listed above. I will not be filing an appellee's brief in the Fifth Circuit because no final judgment has been entered in this action. More particularly, there has been no district court ruling on the claims filed against my client by the Plaintiff. All of the claims against my client are still pending in the district. A motion to dismiss filed on behalf of my client is still pending before the district court.

(emphasis added)

Honorable Jerry Buchmeyer

Chief Judge

1100 Commerce St., 15^th Floor

Dallas, TX. 75242

Dear Judge Buchmeyer:

As you know, on September 21, 1999, you entered a judgment granting the motions to dismiss of Defendants Wallace, Zimmerman, McDowell, Dixon, Richard Davis, Betty Davis, Ray, Jones and Malone. On September 27, 1999 you overruled the Plaintiff's objections to the findings of the Magistrate Judge.

On September 17, 1999 I filed a motion to dismiss on behalf of Defendant Kerry Young (who I believe to be the only remaining Defendant). Pursuant to your previous orders, that motion was automatically referred to Magistrate Judge Stickney.

I request that the court decide Young's motion to dismiss, rather than wait for the Magistrate's findings, so that there is no need to wait an additional 10 days for Plaintiff's objections before the court rules on the motion.

(emphasis added)

Honorable Jerry Buchmeyer

Chief Judge

1100 Commerce St., 15^th Floor

Dallas, TX. 75242

Dear Judge Buchmeyer:

On September 17, 1999 I filed a motion to dismiss under Fed.R.Civ.P. 12(b)(6) on behalf of the only remaining Defendant, Kerry Young¹. On October 6, 1999 the Plaintiff filed a response to that motion. Young's motion to dismiss has not yet been ruled on.

On December 2, 1999 Plaintiff entered a pro se appearance and filed a motion for summary judgment, which was denied on December 8, 1999.

This matter is currently set for trial on your May 2000 docket. I call this matter to your attention for whatever action, if any, you deem appropriate.

No letters of course got through to Judge Buchmeyer, as indicated by the letters themselves, and no record of these letters in the File. The matter is probably best summed up in a footnote by Westergard herself on December 8, 1999 in Docket Reference 60, page 2:

(Docket Reference 59)

This document reads:

The PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AGAINST KERRY YOUNG (filed December 2, 1999) is DENIED.

It is so ORDERED.

ENTERED: DECEMBER 7, 1999

JERRY BUCHMEYER (Rubber Stamp)

This "Order" should again not have come out of the Clerk's Office. Particularly noteworthy, however, is again another use of a subtly wrong cause number, namely 3:99-CV-0696-T instead of the correct 3:99-CV-0696-R, finally manually corrected by replacing the "T" with an "R"!

The Dallas District Court has let the Defendants do in that Court exactly what Plaintiff / Appellant Birnbaum complains the Defendants did for over four (4) years in the State Court, namely rig the process with fraudulent documents and fraudulent arguments.

I pray this Court will remand this Cause, with sufficient instruction, to clearly establish that conduct, by whosoever, including conduct to defraud of honest judicial service, clearly violates Brumley.

I also pray this Court will take judicial notice of violations of Rule 11(b)(2) and Dondi. All counsel have made unwarranted claims, defenses, and legal contentions as shown in Appellant's Brief, and conducted themselves as if the duty to provide "honest service" does not apply to them. In the case of the Attorney General, he clearly has investigative capability, yet there is no showing to this Court that he has made any investigation as to whether he should indeed defend, rather than prosecute in this whole matter.

I also pray this Court will take special judicial notice of the obstruction which is clearly indicated in the tampering with the Process in the Dallas District Court, and will address such other issues in my Objection (Docket Ref. 50, Record Excerpt 7) as I previously tried to bring before Judge Buchmeyer.

I hereby certify that a true and correct copy of the foregoing instrument, and an accompanying computer disk ("WORD"), has been served upon all counsel of record via______________ on this the _____ day of March, 2000, as shown below: