July 10, 2002
Hon. Patrick Leahy
433 Russel Senate Office
Washington, DC 20510
Hon. Senator Leahy:
My name is Udo Birnbaum. I am a 65 years old retired electrical engineer who worked most of his life with defense electronics in support of our military.
This letter is prompted by my seven year experience of being tied up in the courts coupled with my reading of the recent testimony given on June 19, 2002 before your Committee on the Judiciary on the subject of "Penalties for White Collar Offenses: Are We Really Getting Tough On Crime?"
I read testimony ranging from "if citizens loose faith in and have disregard for the legal system, we do significant damage to the fabric of society", all the way to "that when citizens start to believe that the system is no longer just and fair, it risks crashing to the ground in an unseemly mess." It could not have been said better. I also note the Feb. 6, 2002 comments by both Sen. Hatch and Sen. Leahy of efforts to again extend civil RICO across the board.
But nowhere do I find any testimony or reference to the problem I have personally experienced, a problem that I have learned is common knowledge, namely the abuse of the courts and the judicial process itself to commit "white collar" crimes in the name of the law.
With this in mind, I present a short summary of what I have personally experienced. I am not a lawyer, but have seen firsthand what few outsiders get to see, namely that there is no scarcity of rogue elements in our courts who will not abide by the laws of the land, in state court, in the federal district court, in the appeals courts, and on both sides of the bench. I have also found that the criminal authorities, both state and federal, will not address crimes being perpetrated by misuse of the courts, at least in the civil arena. What a perfect place for evil to hide, out in plain sight, in an institution we normally associate with doing good.
Your committee is my last resort. I will share this information as no lawyer can, to describe the events upon me in light of the knowledge I now have. I did not expect such evil as things were coming upon me.
As ridiculous as it may seem, it started eight years ago in 1994 when a neighbor decided to do away with a colony of beavers that had been living forever on a small creek running from his farm to mine. After blowing up their dam and draining the whole area he went to a lawyer still complaining of beaver, all of which he had already killed.
First the lawyer sends me a nasty letter complaining of "my" beavers, and accuses me of "indirect trespass by water invasion" and creating a "twelve acre lake" on my neighbor, which of course is ridiculous, and I freely tell the lawyer so. My neighbor appears to have been flooded by his own beavers, before he blew them up, but I had nothing to do with his problem, and my neighbor certainly never complained to me about anything before he blew everything up.
Then of all things the lawyer sues me for supposedly having violated the Texas Water Code by having, as a person, in 1994 suddenly built a dam ("The Dam") which supposedly caused sand and debris to wash down on my neighbor, who is entirely upstream at that. I complain to the local criminal district attorney only to be told by the investigator that lawyers "do this sort of stuff 98 percent of the time", that this is not a criminal, but a civil matter. I now know that beaver did not give the lawyer a cause of action, so the lawyer just made one up. Looks good on paper. If this is not a "white collar crime", I do not know any other way to characterize it, other than obstruction in the administration of justice.
Having been taught that the burden of proof is always on the plaintiff, and knowing that there was no way for anybody to present evidence that I had built such dam, for I had not built a dam, I chose self representation and started to complain of the fabrication of "The Dam". Not only have I found the courts do not provide equal access to someone who does not pay a lawyer, but I have found that the whole system uses every trick in the book, and every other trick, to run over a self represented party. No notices of hearings, short notices, non-assigned judges appearing, no court reporter records of past hearings, sitting all day in court, etc. Well, the case finally went to trial in 1998, in the worst drought we ever had in east Texas, with all the creeks dry, and smoke blowing in from all the fires in Mexico and Central America, and the beavers, their dams, and the water long gone, and the entire creek eroded by the dynamiting.
The lawyer kept harping about beaver, how they were but "overgrown rats", and tried to paint me as some sort of mad environmentalist. Nowhere did "The Dam" come up so that I could defend against "The Dam" I was supposed to have built. Everything was about beaver. And the judge would not let me show the jury what I had been hauled into court for, and what was in plaintiff's petition, namely for building "The Dam". The judge ruled that the Plaintiff's petition was pleading, not evidence, and therefore could not be shown to the jury, nor talked about to the jury. "The Dam" dam had procedurally disappeared.
The Court's questions to the jury, which I now know were entirely "white collar crime" from both sides of the bench, together with the jury's answers was as follows:
No judgment was pronounced or ever entered. I now know that every lawyer and judge knows that these were not proper questions for a negligence claim. Then we had hearing after hearing as to what the verdict "meant", with the Plaintiff even claiming that it entitled him to a "permanent injunction" on my land to perpetually remove all potential beaver dams! Then after about a year of this, the senior judge who had been handling the case ran off and this case still hangs in the air.
The problem was that it was obvious that the judge had painted himself into a corner, for there was no way for him to issue a verdict conforming to the Plaintiff's claim that I had built "The Dam" dam, my pleading that the lawyer had fabricated "The Dam" case, and a verdict that did not address this, the only issue. "White collar crime".
What grew out of this is however far worse. In December 1998 three bloodless beheaded calves appeared at my farm, and their picture, together with a long article, appeared on the front page of the local newspaper, hinting at everything from whether this was a threat, all the way to devil worship. Shortly thereafter I received inquiries from an out of town lawyer who had read the article. He was going through an intermediary, one of his clients, and I did not recognize that the lawyer was actually soliciting me, but he finally talked me into paying him to pursue a civil racketeering suit (civil RICO) on all the judges and lawyers involved in the "beaver dam" case, claiming "it [civil RICO] is an SOB to defend against". I now know that public officials are almost immune to any civil suit, and that courts hate civil RICO cases, but I did not know it at the time.
The public officials put in the standard Rule 12(b)(6) motion to dismiss, with a request for a "Schultea" determination as to their entitlement to immunity, but instead the court set the case for trial, and never made such ruling. (Note: Schultea is the Fifth Circuit's mechanism to get around the Supreme Court's ban on a heightened pleading requirement outlawed by the Supreme Court's decision in Leatherman)
I could feel something was wrong, but did not know what. Then six months later the Court, without ever a hearing or any discovery, suddenly entered a judgment which did no more than grant the "Schultea" motion for a stay of discovery and to amend the complaint! How ridiculous. With the knowledge I now have I know that the judge never saw the case, and that it was all "white collar" crime by my own lawyer and the judge's clerks.
Becoming suspicious of the lawyer, I fired him, and appealed pro se to the Fifth Circuit in New Orleans. But what they did is even more bizarre than what the Dallas federal court did. They "found" an "adverse judgment" in the beaver dam case, which of course did not and still does not exist. All three judges. And nobody was even claiming that such judgment existed. All three judges just "found" it, and each one found it to be so "inextricably intertwined" with the Dallas civil RICO case so that the Dallas Court, under the Rooker-Feldman doctrine did not have jurisdiction to hear the civil RICO case in the first place. ( This matter is fully addressed in the two attached copies of my Petition for Writ of Certiorari to the Supreme Court)
And if that were not enough, they then proceeded, all three of them, to affirm the judgment of a the Dallas court they had just found lacked jurisdiction.
I have since heard that appeals courts, and particularly the Fifth, have a habit of coming up with erroneous findings of fact, and then putting some law on top of it. This was one of them. And I now know that the Supreme Court, for all practical purposes, only addresses issues of law, not issues of fact, so where is the oversight over such "white collar crime"? There is no 9-1-1 to call, from the lowest, local level, all the way to the Supreme Court.
There is an ironic twist to this matter. The lawyer I had paid $20,000 up front to bring the civil RICO suit created a fraudulent "bill" for an additional $18,000, backdated it by about seven months, then filed suit on me to "collect" it in the same court as he was claiming, in the civil RICO suit, was a pocket of corruption. He had promised to openly bill monthly, but never did, until he came up with the humongous $18,000 "bill". Billing monthly was of course intended to preclude suddenly coming up with a giant fraudulent backdated "bill".
The lawyer had claimed an "open account for services rendered". If I had not countered with the mandatory counterclaim, under oath, he would have gotten by with it. I believe the lawyer's intention, from the beginning, was to entangle me in the federal court not only to get the $20,000 non-refundable up front money, but to ingratiate himself with the "beaver dam" scheme public officials by "saving" them from the very civil RICO suit he had, unknown to them, instigated.
Anyhow, the jury believed the lawyer on the $18,000, and agreed that he had spent an additional $43,000 in bringing suit. The judge would not let me ask the jury whether I was excused by the lawyer's prior failure to bill monthly and not obligate me to large expenses without my approval, as he had promised. The verdict was on April 11, 2002. As of July there is no judgment. I have since come to the conclusion that I was excused as a matter of law, but then a judge is immune to do almost whatever he wants to do.
It should also be noted that the lawyer sued me in the name of his law office, a P.C. (professional corporation). In depositions he testified that it was not a "person", only an "entity" (a "Subchapter S" profit pass-through corporation). It therefore had no more right to sue me than a can of Coca Cola. Add to this that the lawyer suddenly got run over by his own tractor, was the only attorney practicing in the P.C., its only officer, and its only shareholder! The Plaintiff has disappeared, or rather it has become obvious that the "Plaintiff" was a "white collar crime" fraud.
So here I am, after two trials, and two verdicts, with two potential judgments hanging over me. The "beaver dam" case since May of 1998, the "collection suit" since April 11, 2002, with no end in sight.
Coming back to the issue of "Penalties for White Collar Offenses: Are We Really Getting Tough On Crime?" and the perception the public has of the judicial system, I have come to the conclusion it is from lack of integrity across the board, including the courts. I have also come to the conclusion that things will only get worse until we start cleaning up the institution that is at the heart of a civilized society, our system of justice.
I have a lot more material available for consideration from my small place down in the trenches. Attached are two copies of my Petition for Writ of Certiorari (No. 00-982) to the Supreme Court of the United States. It elaborates on the above issues in a more formal format.
Sincerely,
____________________
Udo Birnbaum
540 Van Zandt CR 2916
Eustace, Texas 75124
(903) 479-3929