Federal Judges Decide Cases Based on Prejudices in Violation of Law!
An Innocent's Path to Prison
An Innocent's Path to Prison...
The following is an excerpt from an application for writ of certiorari*to the United States Supreme Court to be issued against the 7th Circuit Court of Appeals when it denied my 28 USC 2255*habeas corpus petition, which I described to the Supreme Court as "the latest strand of a web of endless egregious errors spun by the judicial system," inviting the Court to take this one more opportunity to exercise its supervisory function and "free this innocent victim before a fifty-five year belief in the Rule of Law and one of its most ardent advocates is totally desiccated." --
The web of egregious judicial errors began with Breitwieser et al. v. Wittek Industries, Inc. et al. before Judge Robert D. Potter of the United States District Court for the Northern District of North Carolina. He had entered interlocutory judgments against Wittek without Federal Rule of Civil Procedure 54(b) language so that they were not final. However, plaintiffs filed them as if they were as liens* against what they thought were Wittek's properties in Chicago, LaGrange, Illinois and Pineville, North Carolina. In fact, Pineville had been conveyed by warranty deed to Pineville Real Estate Operation Corporation before then and the new owner had conveyed a trust deed to the 6141 Plan as security for that lender's loan to it. Neither deed was recorded pending funding of the loan. The funding of the loan was delayed due to problems with Bank in Detroit, the former custodian of 6141Plan assets in relinquishing those assets. Nevertheless, the funding occurred and the deeds were recorded prior to the time that the Biggers, Breitwieser judgments became final and were thereafter recorded. Therefore the deeds had priority over the judgment liens.*
Shumaker Loop & Kendrick, J.D. Industries' general counsel, had been counsel also for Wittek at trial. Dissatisfied with them, Carmen Viana engaged McBride Baker & Coles to appeal the adverse judgments against Wittek that Judge Potter had entered. Hook handled both the lien challenges and the appeal.
Judge Niemeyer of the 4th Circuit Court of Appeals authored the opinion, Biggers, Breitwieser, et al. v. Wittek, 4 F.3d 291 (4th Cir. 1993), that ignored the dispositive ERISA* , contract and evidentiary issues in affirming the "Biggers, et al." judgments and also the same issues while reversing the Breitwieser claim on another ground asserted by Hook that Breitwieser's was an ERISA* claim for which jury trial was not available. Hook had also asserted that consolidation had been improper and highly prejudicial, that Judge Potter's denial of the defendants' severance motion had been an abuse of discretion since the sole basis for consolidation was "weak" according to Judge Potter and even that sole basis had been eliminated by settlement of the third party complaint between Wittek and Chrysler Corporation well before trial and Judge Potter so advised. Judge Niemeyer did not address abusive consolidation at all. Also, Hook asserted that the trial record established beyond a doubt there was no "1987 Wittek Severance Policy," which policy was asserted by Plaintiffs as the basis of the "Biggers, et al." claim. Instead, that title was a misnomer. The "1987 Plan" was the J.D. Industries, Inc. 1987 Policy which no longer applied on and after J.D. Industries sold Wittek to Viana on 12/20/90. If the "1989 Wittek Severance Policy" had not been adopted, as Judge Potter found contrary to all the evidence presented by Plaintiffs' and Wittek's witnesses and documents, there would be no Wittek severance policy at all and no severance entitlement. Hook asserted that therefor, the Plaintiffs should be required to refund the payments made to them under the"1989 Wittek Severance Policy," citing Sejman v. Warner-Lambert Co., 889 F.2d 1346, 1348 (4th Cir. 1989), which held that "...once PMP [Wittek] took over management of the Medical Services Division [EC Division] from Warner-Lambert [J.D. Industries, Inc.] its [Wittek's] severance policy, not that of Warner-Lambert [J.D. Industries] was controlling." Judge Niemeyer ignored the effect of the change of ownership on the severance policies. He also totally distorted the clear evidence that the"1989 Wittek Severance Plan" had been adopted well before the EC Plant closing, that personal transactions forms had been prepared well before the EC Plant closing and that the employees had received severance pay pursuant to the "1989 Wittek Severance Policy" as well as notice of such plan well within the ERISA notice requirement [29 USC 1024(B)(1)], indeed, before termination of their employment.
Hook filed a petition for rehearing enbanc* which detailed even more specifically the ignored issues with actual quotations from the trial transcript and record instead of their mere citations as in the initial brief. The 4th Circuit Court of Appeals denied the petition, its published opinion not even acknowledging that there was a petition for rehearing, or its denial, so embarrassed must the Court have been by the call to task for its terribly injudicious opinion.
When again the judgment lienholders sought to enforce their liens* against Pineville, Hook challenged them on behalf of Pineville Real Estate Operation Corporation and the 6141 Plan by filing suit in the Federal District Court for the Western District of North Carolina. Judge Potter again presided. He declined to block the sheriff's sale on the ground that there was no federal jurisdiction. His decision was immediately appealed, the injunction bond becoming the appeal bond by operation of the contract and the sales stayed pending appeal. In a percuriam* opinion, Pineville Real Estate Operation Corporation; Carmen Viana, Trustee of the Retirement Plan of the U.S.W. Local 6141 Employees of EC Manufacturing Division v. Michael, Meierhoefer, Breitwieser, Biggers, et al., 32 F.3d 88 (4th Cir. 1994), the 4th Circuit Court of Appeals affirmed Judge Potter, asserting that a federal rule did not confer federal jurisdiction, relying on Port Drum co. v. Umphrey, 852 F.2d 148, 194-50, a Rule 11* case. On behalf of the 6141 Plan and Pineville Real Estate Operation Corporation, Hook petitioned the Supreme Court for writ of certiorari, expositing the numerous bases of federal jurisdiction. The Supreme Court denied certiorari despite the great significance of the issue to the federal judicial system and federal litigants. 130 Led.2d 880 (1995)
As the federal courts refused to exercise jurisdiction and the PBGC, which had become trustee of the 6141 Plan, withdrew from Hook's continuing efforts to prevent Pineville from being sold at sheriff's sale, Pineville was lost for the amount of the liens, approximately $380,000. (Today it is a successful commercial property with a tax assessed value of $2,500,000 without any substantial improvements having been made.) Therefore key employees of EC Manufacturing Division received the benefit of Pineville rather than the 6141 Plan and its blue collar employees as Viana had intended.
The PBGC sought a decree from the Federal District Court for the Western District of North Carolina declaring the 6141 Plan terminated 2/13/91 and obtained such decree in PBGC v. Wittek, 3:95CV117 MCK (USDC WD NC) so that its liability to participants could be limited and its civil targets expanded to J.D. Industries and its group of companies, since Wittek now was defunct. (The PBGC had a case going against this same control group for Century Boat pension liabilities--which Hook had hotly and correctly but unsuccessfully contested on behalf of Wittek in the administrative arena.)
The scene shifts to the Central District of Illinois where Wittek had had it consolidated plant in the 7th Circuit. Despite all their efforts to preserve and protect the 6141 Plan loan and its security, no good deeds go unpunished in the federal judicial system. A federal grand jury indicted* Viana and Hook for unlawful conversion of the assets of an ERISA Title 1 plan for transacting the loan, wire fraud for transacting the transfer of 6141 Plan assets from the former custodian, by its consent and due to the undisputed misfeasance* and malfeasance,* to the successor custodian, and "money laundering"* for causing the deposit of the loan proceeds from Pineville Real Estate Operation Corporation to its borrower, Wittek. Hook moved to dismiss the indictment based on resjudicata* and estoppel* effect (judicial* and collateral*) of the PBGC v. Wittek decree, arguing that his prosecution was precluded, citing Sealfon v. U.S., 332 US 575, 580 (1948), Yates v. U.S., 354 US 298 (1957), Montana v. U.S., 440 US 147, 153-4 (1979), Standefer v. U.S., 447 US 10 (1980), Allen v. McCurry, 449 US 90, 94-5 (1980), Nevada v. U.S., 463 US 110, 138-9 (1983) and U.S. v. Mendoza, 464 US 154 (1984), because at the date of the 6141 Plan's termination it ceased to be a plan subject to any provision of Title 1 of ERISA and therefore was not a Title 1 plan as required by the criminal statute, Tippet v. Smith, 592 F.2d 1112,1113 (10th Cir. 1979), U.S. v Hook, 195 F.3d 299, 307 (7th Cir. 1999). Such termination had occurred also in fact, by contract, and by operation of law, as well as by the PBGC v. Wittek decree which held that the 6141 Plan terminated by 2/13/91. The latter alone should have precluded U.S. v. Hook since the essential premise of U. S. v. Hook was that the 6141 Plan had not terminated by 2/13/91, directly contrary to the PBGC v. Wittek decree that the 6141 Plan had terminated by 2/13/91.
It also eliminated the "unlawful" from the alleged "unlawful conversion" of the indictment which was necessarily premised on the loan being an "indirect prohibited transaction." The provision of ERISA which prohibits certain transactions with "an employer any of whose employees are participants in the Title 1 plan" is a Title 1 provision (29 USC 1106). Hence, the "prohibited transaction" provision did not apply to the loan transaction because Title 1 of ERISA does not apply to a terminated plan.
In addition, since the employment relation between all of the 6141 Plan participants and EC Division of J.D. Industries, Inc. had terminated 12/20/90, with last Warn Act (29 USC 2101) payments made by 2/13/91, according to the court (actually 2/21/91), Wittek was not an "employer any of whose employees were participants in the plan." Hence, even if the 6141 Plan were a Title 1 plan, i.e. subject to the "prohibited transaction provision" of Title 1 of ERISA, a transaction with Wittek would not have been a "prohibited transaction" under Title 1 of ERISA. Likewise, the participants were not "employees," to the same effect.
Judge Mihm ignored the jurisdictional issue. He wavered as to the Title 1 impact as an element to be proven beyond a reasonable doubt. At first he treated it as an element to be decided solely by him despite U.S. v. Gaudin, 515 US 506 (1995). [See also Neder v. U.S., 527 US 1 (1999)] Later, he relented to the extent of requiring the prosecutor to present evidence of it to the jury. The prosecutor did so by the opinion of his ERISA expert. However, Judge Mihm would not allow Hook to cross-examine that witness as to that opinion or to elicit the contrary opinion of Hook's expert witness before the jury, or to present any other evidence of termination, including the PBGC's memoranda asserting 2/13/91 as the termination date and the PBGC v. Wittek decree. Nor would Judge Mihm allow the issue to be argued by Hook. Therefore the jury had only one side of the issue, the side presented by the prosecutor. What this did was bolster the prosecution's side, as the jury, ignorant of Judge Mihm's gag of Hook, would have expected a challenge from Hook were he in disagreement. Therefor Judge Mihm committed constitutional structural error by precluding Hook's presentation of his defense and denial of trial by jury. Gaudin, supra., Cheek v. U.S., 498 US 192, 202 (1991), Mathews v. U.S., 485 US 58, 63 (1988), Davis v. Alaska, 415 US 308 (1974). His basis for refusing Hook's ERISA expert was simply that he personally disagreed with the expert's opinion and he did not personally believe that it would be helpful to the jury, contrary to the criteria for expert testimony gatekeeping as expounded by the US Supreme Court in Daubert v. Merrill Dow, 509 US 579 (1993). [See also Kumho Tire Co. v. Carmichael, 526 US 579 (1999) and Smith v. Ford Motor Co. 215 F.3d 713 (7th Cir. 2000).]
Judge Mihm's structural constitutional errors were so numerous and devastating as to defy recounting. They severely adversely affected Hook's legitimate, well documented claims of improper venue, rampant prosecutorial misconduct, judicial bias, actual innocence, and defendants' bonafides and lack of mensrea.
Full exposition required an expanded appellate brief, which the 7th Circuit Court of Appeals denied. Judge Kanne of the 7th Circuit Court of Appeals authored the opinion, 195 F.3d 299 (7th Cir. 1999), which perverted the 7th Circuit's own precedents by asserting that Hook had not sufficiently developed issues in the initial brief and was contrary to the 7th Circuit's appellate duties as expressed in Kyles v. Whitley, 514 US 419, 455-6 (1998). Judge Kanne only dealt with a few of the numerous and devastating egregious errors. Unfortunately for Hook, even this treatment was a legal and logical disaster. Hook's exposition of this is set forth in his petition for rehearing enbanc to the 7th Circuit Court of Appeals and his petition for writ of certiorari. In sum, Judge Kanne held that PBGC v. Wittek did not have judicial estoppel effect because it was in the nature of an administrative decision. Of course, he could give no supporting citations as there are none for his bizarre holding. Indeed, all of the precedent requires the opposite, including Nevada v. U.S, 463 US 110, 138-9 (1983) which requires resjudicata effect for a decision in its nature administrative sought and obtained by the Federal Government as to a res, and, as to judicial estoppel, including a host of Supreme Court and 7th Circuit cases. U.S. v. Dixon, 509 US 688, 697-8 (1999), Grady v. Corbin, 495 US 508 (1990), Turner v. Arkansas, 407 US 366 (1972), Wilson v. Chrysler, 172 F.3d 500 (7th Cir. 1999), DiGuiseppe v. Village of Bellwood, 68 F.3d 187 (7th Cir. 1995), Chaveriat v. Williams Pipeline Co., 11 F.3d 1420 (7th Cir. 1993) and Astor Chauffeur v. Runnefeldt, 910 F.2d 1540 (7th Cir. 1990).
Judge Kanne saw nothing wrong with Judge Mihm's denial of defense and usurpation of the jury function. The result of Judge Kanne's opinion was a denial of appeal. The Supreme Court denied certiorari. 529 US 1082 and rehearing petition 530 US 1226.
The Illinois Supreme Court commenced its proceeding to determine whether Hook should be disciplined for the conduct resulting in his conviction. Whereupon the US District Court for the Central District* of Illinois instituted proceedings (P-00-9) to remove Hook from its rolls by virtue of his discipline by the Illinois Supreme Court, even though Hook had not yet been so disciplined; indeed, to this date Hook has not been so disciplined. The proceedings are in process. Hook is hotly contesting any discipline based on the nullity of U.S. v. Hook for numerous reasons, including lack of subject-matter jurisdiction, lack of full and fair hearing at trial and appeal thus precluding its use as a basis for discipline and the absence of any criminal or other conduct upon which such discipline lawfully can be based.
Hook challenged Chief Judge Billy Joe McDade presiding in P-00-9, since Judge McDade had judicially admitted bias against Hook following his exoneration therefor in Hook v. McDade, 89 F.3d 350 (7th Cir. 1996). He responded by recusing himself with a superfluous and prejudicial adhominem and appointing Judge Mihm, a judge more prejudiced against Hook than he, in his stead. In consequence, Hook challenged Judge Mihm presiding since he had been appointed by a biased judge instead of the District Executive Committee, he was biased in fact and appearance and he was a witness as to the facts and circumstances upon which the removal proceeding would be based, i.e. the criminal conviction. Judge Mihm declined to recuse himself.
As required by 7th Circuit* precedent, Hook v. McDade, 89 F.3d 350 (7th Cir. 1996), Hook immediately filed a mandamus petition in the 7th Circuit Court of Appeals, which that Court immediately denied without opinion. (#00-2048) The Court's attention to the matter was so minimal that it even miscaptioned the denial as for the criminal case, U.S. v. Hook, 95-10010, rather than the removal proceeding, In re Hook, P-00-9.
Immediately upon return to Judge Mihm, Hook filed a 28 USC 144* Affidavit. Instead of removing himself so another Judge could preside, Judge Mihm again declined to remove himself and declared the affidavit untimely and insufficient. Whereupon Hook returned to the 7th Circuit Court of Appeals.* Again the 7th Circuit denied Hook's mandamus petition without opinion. (#00-2642)
Immediately upon return to Judge Mihm, he defaulted Hook, thereby removing Hook from the rolls without any further ado. Hook appealed the recusal issues and lack of due process in that Judge Mihm had removed Hook without affording him the opportunity of substantive response.
The 7th Circuit Court of Appeals affirmed Judge Mihm's conduct. For exercising his appellate rights, the 7th Circuit Court of Appeals sanctioned Hook. Its so doing and the manner in which the 7th Circuit did so violated Federal Rule of Appellate Procedure 38.* The 7th Circuit then removed Hook from the 7th Circuit attorney rolls. Its so doing and the manner of its doing violated 7th Circuit Rule 46(d) and FRAP 46(b)(1)(B).* Hook petitioned the Supreme Court. The Supreme court denied the petition. (#01-5777) Therein Hook described his being whip-sawed between the 7th Circuit mandamus and appeal doctrines for remedy of judicial bias and being denied the one because of the other, being sanctioned, in violation of the Rules therefor, for his appeal because the 7th Circuit asserted it had already addressed the issues in mandamus, when it had done nothing, being removed from the 7th Circuit Bar without proper cause in violation of the 7th Circuit's own rules and those promulgated by the Courts for all Circuits, all of which implicated the Supreme Court's appellate jurisdiction because the 7th Circuit flouts Liljeberg v. HSA Corp., 486 US 847 (1988), adheres to a doctrinaire recusal concept bogged down in Berger v. U.S. 255 US 23 (1921), rather than illumined by Liteky v. U.S., 510 US 540 (1994) and discourages those who dispute its Neanderthalic ways by clubbing them off the law. The Supreme Court denied Hook's petition.
Hook set forth in that petition that the 7th Circuit had awarded itself monetary sanctions against Hook purportedly pursuant to FRAP 38* even though that Rule provides solely for payment to the appellee based on his cost, and even though Hook had proceeded informapauperis.* Now the 7th Circuit has also precluded Hook from filing papers in the 7th Circuit's federal courts, so-called Mack sanctions, Support Systems International Inc. v. Mack, 45 F.3d 185 (7th Cir. 1995), even though there is no comparison between Mack and Hook, nor legal basis for such sanction. When Hook attempted to petition for rehearing, his petition therefor was rejected by the Clerk of the 7th Circuit Court of Appeals per the no-file sanction.
Now that you have read this excerpt from the petition for writ of certiorari to the Supreme Court can you guess what the Supreme Court did about the 7th Circuit's denial of my 28 USC 2255 habeas corpus petition? What else? The petition was denied!