Finally, a webinar (complimentary) on bribery and corruption for lawyers! New York Law Journal

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Sent: Friday, February 27, 2015 1:25 PM
Subject: Join Us for a Complimentary Bribery and Corruption CLE Webinar – March. 3
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Tuesday, March 3 | 2:00-3:00 pm ET 

Together in Arms: Lawyers and Forensic Accountants Fight Bribery and Corruption

Approved for 1 CLE credit for CA, IL, NJ and NY

Anti-bribery and corruption remain a major risk and concern for multi-national corporations and the focus of continuing DOJ and SEC investigations. Whether conducting risk assessments, due diligence or investigations, or monitoring the effectiveness of ABC compliance programs, when lawyers and forensic accountants team up, they create a powerful alliance that can help client organizations with their anti-bribery and corruption-related matters.

We are pleased to invite you to participate in this webinar where we will discuss, among other things:
  • The unique and technical capabilities that forensic accountants bring to the table 
  • How accounting and control environments are key to assessing the risks of bribery and conducting FCPA investigations
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  • The challenges companies face around third-party risk management and i ntegrity due diligence as a critical element of an effective compliance program
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From Ken Ditkowsky–Time to take action and fight the good fight to save seniors and disableds from nursing home purgatory

From: kenneth ditkowsky
Sent: Feb 27, 2015 1:39 PM
To: YJ Draiman , Eric Holder , Tim NASGA , “JoAnne M. Denison” , Probate Sharks , Matt Senator Kirk , Nasga Us , “J. Ditkowsky” , “FBI- ( (” , Chicago FBI , “ComplaintAdmin ADA (CRT)” , BILL DITKOWSKY , Janet Phelan , Chicago Tribune , SUNTIMES , Ginny Johnson , Bev Cooper , FOX News Network LLC , Diane Nash , Cook County States Attorney , Scott Evans , Fiduciary Watch , “Y. ACLU” , ISBA Main Discussion Group , Barbara Stone , Illinois ARDC , Glenda Martinez , Edward Carter , Cook Sheriff , Sam Sugar , “” , RosANNa Miller , “Mr. Lanre Amu — Honest Atty Unfairly Persecuted By ARDC” , Eric Blair , Alyece Russell , Candice Schwager
Subject: Fw: Join Us for a Complimentary Bribery and Corruption CLE Webinar – March. 3

Time for everyone to know how a criminal bribes a judge, political figure, etc al and how they are detected.    Mr. Larkin even though being over-paid with public funds does not file the ethics reports required by the State of Illinois.   Janet Phelan examined the title records to his home!   They should be required reading as he is has refused to join in calling for an honest complete and comprehensive of elder cleansing and in particular the Sykes case 09 P 4585 and the Gore case.  Methinks they reveal much!   So much so that I’ve written the following letter to the governor detailing where a large amount of money can be obtained for the State of Illinois without raising taxes a dime!
Dear Governor,
The State is in serious financial trouble, yet millions of dollars of unpaid and unreported taxes remain uncollected.    Please allow me to explain.     If you and I get together and we rob the neighborhood Bank our obtaining these funds is a taxable event not only under Federal law, but State law.     Our liability is joint and several.   Thus, if the IRS does not collect the taxes due from me, they do collect it from you.   Of course if the money is returned we are entitled to a deduction for the return; however, we must file, report the gain and claim the deduction.
Yes, I understand that it is impractical to try to collect from a felon who is sentenced to jail for decades; however, in the elder cleansing scenario, i.e. the railroading of a senior citizen (or disabled person) into an illegal and/or ultra vires guardianship, isolating the individual and depriving the said citizen of their human, liberty and property rights so as to redistribute to the guardian for profit and those acting in concert with the said guardian we are talking about individuals who have the wherewithal to pay the taxes due in full.
Taking the Mary Sykes 09 P 4585 (Circuit Court of Cook County, Illinois) we have every element of an abusive guardianship complete with all the elements of elder cleansing.    We start with a petition that is insufficient as a matter of law in that it fails to make the required disclosures and was filed in Cook County when the Court, the two guardian ad litem, the Judge et al had all been informed that Mary had been spirited out of the county.     There was no honest attempt to obtain jurisdiction.   The 755 ILCS 5/11a – 10 summons was never served on Mary Sykes.   Worse yet, whatever summons placed with the Sheriff was not intended to be served as knowing that Mary Was not in Cook County, the Sheriff was directed to serve summons in Cook County.   To carry the facade to absurdity the guardian made application for a special process server well knowing that Mary was secreted in the petitioner (guardian)’s home in DuPage County.    Guardian ad Litem Cynthia Farenga even informed Judge Connors (the presiding judge in the case) of this fact.     755 ILCS 5/11a -10 requires service of a particular form summons on the alleged disabled person at least 14 days prior to a hearing on the competency of the disabled person.     As this was not done, jurisdiction was never obtained by the Circuit Court of Cook County.
As a guardianship by its nature is an invasion of Constitutional Rights guaranteed by the Bill of Rights and the Illinois Constitution care has to be taken so that the Rights of a citizen are not compromised.    Thus, 755 ILCS 5/11a – 3 and in particular 3(b) provides the guardianship is limited to the services that the individual actually needs in order to enjoy the benefits of American Citizenship.     Put another way, the Americans With Disabilities Act provides for the State or provider to do what is necessary to make a reasonable accommodation.    The Rule of Law therefore is designed to protect the alleged disabled person from an unnecessary intrusion on his/her rights and/or a guardianship in which the guardian has overbroad powers or the ability to infringe on the alleged disabled persons rights or property.
Pursuant to statue the disabled person is entitled to be proven to be incompetent by clear and convincing evidence and further it must be determined that the individual is indeed incompetent and to what, if any, extent.    As noted on the MaryGSykes. Com website videos Mary was not incompetent.    She knew the nature and extent of her property (and did her own banking), determined that her older daughter who petitioned to be plenary guardian had found before it went missing $4000.00 from Mary’s bank account Etc.       To protect against exactly what happened the Supreme Court of Illinois has ruled pursuant to 755 ILCS 5/11a – 10(b) that it is jurisdictional that the nearest (closest) relatives of the alleged disabled person receive 14 days’ notice prior to a hearing on incompetency.
Of course, there was no hearing on incompetency and no 14 days prior notice.     Incompetency was ascertained without a scintilla of evidence being presented or required.    An agreement between the two guardian ad litem (Cynthia Farenga and Adam Stern) and the attorney for the proposed guardianship produced an order that was rubber stamped by Judge Connors.   As all these individuals have been engaged in guardianship matters for many years there is no doubt that their actions were in concert and intentional – and they knew or should have known of the jurisdictional infirmity.
Shortly after the clearly ultra vires and sans jurisdiction creation of the guardianship for profit, Mary’s safety deposit box was breached and about a million dollars in gold coins were removed and never inventoried.    This event is a taxable event and like the Bank robbery in my example each of the participants in this robbery of Mary Sykes’ safety deposit box has joint and several liability for the Federal and State Income taxes due.     As the theft occurred in 2009, the gain had to be reported on the Illinois and Federal income tax return for the year 2009 filed in 2010.     (If not reported the statute of limitation does not run until it is reported.)
Let us go a bit further.    Similarly money belonging to Mary was removed from a mattress and valuable antiques were liquidated though never inventoried.    The illegal and ultra vires guardianship made these acquisitions to be also taxable events.    The doctrine of constructive receipt made the reporting year 2009.    The younger daughter of Mary Sykes and other relatives who have knowledge of these values estimate the value at over ½ million dollars.       Recently Mary’s dwelling – which had been previously appraised at approximately $700,000 was ultra vires sold off in what is believed to be a friendly sale for approximately $230,000.00.     The ½ million soon to be realized profit is also ordinary income though it is expected that through anticipated mesne sales the ½ million dollars will be obtained by the miscreants and claimed as a ½ million dollar capital gain.     This anticipated fraud has not occurred yet; however, the theft of the title to real estate should be by the doctrine of constructive receipt relate back to 2009 as ordinary income.
As this is not an isolated event and the very same scenario has arisen in other guardianships for profit in Illinois it is apparent that the tax evasion occurring is wide spread and if the taxes collected were to reach the treasury both the Federal and State would have much more money to pay down pension debt and other fiscal problems of the State.     No new taxes need by imposed on the citizens of the State of Illinois or the United States of America.     All that has to be done is to collect the taxes that the political and judicial elite owe from their endeavors into ‘elder cleansing.’
18 USCA 371 and State Conspiracy laws were enacted to give Johncomelatelys to share in the liability jointly and severally.     Because of the political sensitivity of the guardianship for profit/elder cleansing scenario Jerome Larkin and certain attorneys at the Lawyer Disciplinary Board (in Illinois the Attorney Registration and Disciplinary commission) have taken it upon themselves to join in the 18 USCA 242, 18 USCA 4, 42 USCA 12203 violations pursuant to 18 USCA 371 and 18 USCA 1341 to assault the First Amendment and Title one of the Illinois Constitution.     As the law no longer distinguishes between Accessories before, during, or after the fact (18 USCA 371) it is respectfully suggested that the attempts to silence reports by myself, Ms. Dension and others to law enforcement (18 USCA 4) make Mr. Larkin and those he acted in concert with equally liable for the State and Federal Income taxes due.
NB.   The miscreants want to play – they should pay.   The Illinois Department of Revenue has taxes, interest and penalties all available for collection.   The IRS has taxes, interest and penalties all available for collection.   If there is one set of laws for everyone, then, the highly over-paid public officials who aid and abet the miscreants in discriminating against the elder and the disabled ought to at least pay the taxes on the ‘booty!’ received whether law enforcement enforces the law or not. 

From Eliot Bernstein – Sharp Practice by Lawyers defined

Here’s an interesting definition of the word “sharp practice”

I am posting this because it seems to fit the problems seen by many of you–opposing counsel that lies, threats, barely (if at all legal) tactics much of which is designed to churn legal bills and do little in the way of “best interests” of the disabled person or those that love and support her or him.

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From Eliot Bernstein – Sharp Practice by Lawyers defined

Here’s an interesting definition of the word “sharp practice”

I am posting this because it seems to fit the problems seen by many of you–opposing counsel that lies, threats, barely (if at all legal) tactics much of which is designed to churn legal bills and do little in the way of “best interests” of the disabled person or those that love and support her or him.

From Ken Ditkowsky, how long with the cover ups hold up?

From: kenneth ditkowsky
Sent: Feb 21, 2015 8:58 AM
To: JoAnne M Denison , Tim Lahrman
Cc: Probate Sharks , Nasga Us , “J. Ditkowsky” , Eric Holder , Matt Senator Kirk , “FBI- ( (” , Chicago FBI , BILL DITKOWSKY , “ComplaintAdmin ADA (CRT)” , Janet Phelan , Ginny Johnson , “” , ISBA Main Discussion Group , Bev Cooper , FOX News Network LLC
Subject: Re: Fw: Responding to your inquiry

Yesterday I received a bit of input informing me that the issue is no longer if, but when.  I do not know if the source has any credibility but a great number of people are starting to realize that ‘elder cleansing’ is a serious cancer that if it is not eliminated could cripple – if not destroy – America.    The ‘coverup,’ ‘intimidation,’and ‘ retaliation’ by corrupt public officials such as Jerome Larkin is metastatic.    Larkin not only encourages, aids, abets, acts in concert with the felons, but, provides official protection for their venal activities.  (NB.  In the Sykes case 09 P 4585 there still has been no attempt to vest the Court with Jurisdiction.  In fact, it has not been discussed at all in court, other than to deny that Mary was never served with summons and complaint!)   A  5 ILCS 5/11a – 10 type hearing has never been held!
Apparently a competency hearing is no longer necessary – Mary’s life savings have been redistributed to the miscreants and their cronies – all tax free!  (I wonder if they harvested any Au from Mary’s teeth)
It is quite humorous in that all Larkin had to do to CYA was to demonstrate a scintilla of pretended good faith and join in the call for an Investigation.   Instead, at the request of Cynthia Farenga and Adam Stern, JL set up a kangaroo court to retaliate against the call.   Most seriously, the continued prosecution of JoAnne Denison for owning and operating a blog that joins in the call to do a clean up of dirt in the court system on her blog is not only outrageous but a demonstration of lack of respect for the core values of the United States.   Just how deep the cancer has penetrated will be disclosed in the future –
Larkin and the Illinois Courts are aware that the Supreme Court of the United States has addressed the issues a number of times, to wit:
Private right of action implied by Title IX ( 20 U.S.C.S. §§ 1681 et seq. ) for victims of sex discrimination by recipients of federal education funds held to encompass  claims  of  retaliation  for complaining about sex discrimination.     Jackson v. Birmingham Bd. of Educ., 544 U.S. 167, 171, 125 S. Ct. 1497, 1502, 161 L. Ed. 2d 361, 361, 2005 U.S. LEXIS 2928, 1, 73 U.S.L.W. 4233, 95 Fair Empl. Prac. Cas. (BNA) 669, 86 Empl. Prac. Dec. (CCH) P41,871, 18 Fla. L. Weekly Fed. S 193 (U.S. 2005)
The same principle applies to ADA violations and First Amendment matters. I hope the information that I received yesterday is accurate and will result in at least one massive festering tumor being removed.   The actions of Larkin in mistreating the victims and families of elder cleansing and attempting to silence lawyer cries of corruption are not only disingenuous but reduce him to the below the nadir of society!
Larkin must be made an example of so that in the future public officials who are paid to protect the public realize that the public they are to protect is the victims of dishonest judicial corrupters.    It should be noted that even at this late date, Larkin has not used his agency to investigate the Sykes case, the Gore case *****.   He has been granted wide supboena powers by the Illinois Supreme Court, yet he fails to use them, except to suppress a blog that disseminates facts and information regarding the frauds perpetrated in the Illinois court system.  He has instead used his agency in concert with the felons who prey on the elderly and the disabled.
Elder Americans are under seige!

From Eliot Bernstein–over 2,000+ torture pictures to be released of war detainees

While the ACLU sues to ensure that our democracy is functioning the way it should, with complete transparency regarding the actions of the powers that be, apparently BOTH the Bush and the Obama administration have been playing hide the sausage with photos that might be even more disturbing that already released.

Why the CIA pretends that treaties against war crimes, and the Nuremberg trials do not exist is beyond me.

Even children in grammar school seem to know more about how torture is wrong and illegal than grownups with decades of experience in international law and degrees from Ivy League institutions.

Apparently the publication of these photos were held up with motion after motion filed by the government to delay, delay, delay.  What the delays buy them is not understood because they are delaying the inevitable.  And if the government is so heck bent on delaying the release of these videos then why weren’t they properly managing the CIA staff in the first place, and what provisions have they put in place to ensure this does not happen again.

Will the Obama administration release new policy changes with the photos to ensure there is no repeat of this embarrassing and volatile situation.

The government constantly claims release would inflame or incite violence, but I think they should have thought of  that years ago when the war crimes were being committed.  2,000 photos are more than an “isolated incident” from one or two out of control employees.


From Ken Ditkowsky — Larkin believes that Guardianship is still in rem from the dark ages

to explain.  When a proceeding is “in personnam” personal jurisdiction is obtained by service of a summons and complaint upon a person or corporation.  An “in rem” proceeding (such as a foreclosure) can take place ask long as you have served the property by notice and the court attains jurisdiction over the property or “rem.” (for examply posting on an apartment for eviction or a home for foreclosure but only AFTER you have validly attempted to serve the owners and after a diligent search cannot find them.

In Mary’s case, the court knew where she was, but never served her.  So the only notice was by a court order handed out to a few people.

Of course, this meets none of the standards for either in personnam or in rem jurisdiction, but that does not stop the court appointed/connected miscreants from taking over Mary’s life, property, civil and human rights and sending her to a remote location (Naperville) with a daughter when her last POA said she wanted to live in her home until she died and have both daughters care for her there.

But the property was sold, and at my ARDC trials, one of the main cover ups was to deny that some $160k in attys fees to Peter Schmeidel and Fischel and Kahn–or the bulk of the estate would go to attorneys fees.  The ABA Journal covered this up by pulling comments on their blog from family members who related the lack of service of summons and complaint upon Mary and notice to Mary’s family, which is required to take in personnam jurisdiction over her.  The ARDC covered this up by banning most of my witnesses (experts and fact witnesses) but presenting Judge Stuart, who lied on the stand and then “suddenly retired” soon afterward, Peter Schmeidel who is covering up telling the court all of Mary’s assets have to be liquidated “for her care”, but the vast majority have already gone to attorneys fees ($700k home appraised in January sold for $220k in Mar, then they grabbed daughter Gloria’s assets of some $200k falsely claiming they belonged to Mary, and $60k from the home sale went to attorney’s fees and over $100k from Gloria’s funds went to attorneys. You figure.  The cover up continues with the ARDC having witnesses lie, transcripts changed, audio tapes documenting the changes supressed–it’s all fraud on the court.

Best thing about fraud on the court?  It has NO LIMITATIONS PERIOD.  That’s right, like jurisdiction, it’s a scab over a huge festering boil waiting to be picked — any time, any day.

The hue and cry from probate victims will not stop as long as we have a free and open and democratic society and open internet.  They are banding together and publishing popular blogs ( this blog, Probate Sharks, NASGA, John Wyman’s, Candice Schwagers, Stop Guardian Abuse and others)

Everyday, the ARDC flings more and more paper at me and I don’t care.  All I think of is the suffering and horrors these probate victims and the families have gone thru and will go thru unless and until all this nonsense in the courtrooms stop.

In the ARDC decision, the tribunal insulting stated “the Respondent does not know about basic concepts of law…..”  Sorry I have to disagree with the Tribunal, but their “basic concepts” of lies, coverups, banning crucial witnesses, treating the Sykes family members like dirt–I don’t  need their “basic elements” in my craw.  The Tribunal can keep that for themselves.

I know what a summons and complaint is and notice to all next of kin.  I know the alleged disabled respondent must receive a “notice of rights” in large bold type to take jurisdiction.  It’s the Tribunal that does not know basic concepts of due process and free speech that a 6th grade student must know on her or his US civil rights exam to pass to the next grade.

I don’t see any of the tribunal offering to take on all my cases for pro bono, but I will ask them, and Mr. Sanders can pull his money out of his pocket to sponsor lawyers to do the same thing I do for free or low cost each and every day to protect the human rights, civil rights and elderly of our seniors.  This is karma they have to make up.

Mr. Splitt just asked for an extension of time for his brief to the review board.  He said the “record is too big” to get his brief done.  I wonder when he will finally realized that he is prosecuting an innocent, honest attorney and all this is bad karma for him, and he should just refuse to write the brief and quit.  While everyone deserves representation, what the ARDC wants him to write is a huge pack of lies and a cover up.  When the fraud on the court is finally heard by an open and honest legal forum, hasta lasanga, don’t get it on ya.

Respectfully Mr. Splitt, no extension of time will allow you to search that entire record for some reason to discipline me.  Keep on going, but you won’t find it.  And if you do what the ARDC asks of you to convict a wholly innocent attorney, like Ken Ditkowsky and Mr. Amu, maybe it’s time to just walk off the job.  If your heart is in the right place, the angels will protect you.

Each and every day, I work for low cost or free and do not turn people away.  I help them against the liars and the cheats and the thugs hanging in the court room hallways.  It’s not always easily and I have my critics (the ARDC talking about all the good I do in a huge paragraph, but it ends with “all of that is misplaced.”)  No, Mr. Larking, goodness and kindness and helping others is NEVER misplaced.  I’d rather have a ton of that than the lies propagated during my trial, and the exclusion of crucial witness, the lying and the cover ups


From: kenneth ditkowsky
Sent: Feb 14, 2015 7:36 AM
To: Janet Phelan
Subject: The In Rem guardianship/ or the application of the Dred Scott Decision to Seniors and the Disabled in Illinois and some other miscreant States.

 The Avarice of the guardians for profit is legendary.     Like their sponsors and mentors in the nursing home industry, the corrupt judges and public figures who act in concert with them, and the hanger-ons who pick up quarters that drop from the booty no loose dollar avoids the net.     In the Mary Sykes case and a number of other guardianship cases that we’ve examined and reported to the Justice Department the miscreants ran into a problem – the victim was not incompetent.     In the Sykes case she was so clearly competent that the miscreants could not afford to allow a hearing to occur.     Thus, the record in case 09 P 4585 indicates that there was no hearing – indeed, to meet the standard of clear and convincing (and determine the extent of the disability) not a single word of testimony was uttered!     Of course prior notice of the non-existent hearing was also avoided.   
As the foregoing is jurisdictional how does the law rationalize the theft of more than a million dollars as legitimate?     The Court  orders entered by the Judge are void for lack of jurisdiction and thus when and if the tax laws are applied some very heavy clouted people are going to jail and are going to wind up with non-dischargeable tax liability.    Ergo, the Illinois Attorney Registration and Disciplinary Commission and Mr. Larkin have exerted extreme efforts to ‘cover up’ the felonies by trying to silence myself and other attorneys who take their oath seriously     
The Dred Scott decision has been resurrected in Illinois to make the Elderly and the Disabled property in the Probate Division of the Circuit Court of Cook County, Illinois.  (See 09 P 4585) if Tim is correct and personal jurisdiction is not necessary pursuant to this scenario – the seniors and the disabled are PROPERTY.
Tim has suggested that the ultimate cover up is going to be and is that the guardianship proceedings are in rem proceedings and therefore personal jurisdiction is un-necessary.     This is same legal theory that the National Socialists used to confiscate the property of their victims in the holocaust scenario.    Stalin just took what he wanted, but, we here in America recognize that history treats thieves badly – thus, a rationalization is necessary.   (In rem proceedings are proceedings against the property themselves).    Thus, to obtain jurisdiction where none can be had, the miscreants AND THOSE WHO THEY ACT IN CONCERT WITH (such as Jerome Larkin) claim that possession of the property gives them all the jurisdiction necessary.
 The issuance of a Court order is obscene and void as it would violate the Fifth and Fourteenth Amendment to the United States Constitution.     As theft is a felony, I reported these incidents to law enforcement pursuant to 18 USCA 4.      The miscreants think that reporting crimes is unethical and I now have a four year suspension for doing so!     Thus, pursuant to my First Amendment Rights I am continuing to report this criminal activity by Mr. Larkin and his cohorts and demanding their prosecution in the very same manner that America would address a bank robbery, theft by a fiduciary, tax evasion, fraud etc. 

Dr. Reinstein takes massive kickbacks for risky drugs..psychotropic drugs!

Today, from the Chicago Tribune

$600k in kickbacks, a prolific prescriber, he once prescribed 490 prescriptions in 5 days!

And we wonder why the Tribunals at the ARDC and Jerome Larkin at the ARDC are engaged in a massive coverup.

They either knew or should have known of the kickbacks–just like Gov. Ryan went down for.

No one ever proved that Gov. Ryan took a kickback from any $200 no test CDL, but he was convicted and sent to prison for many years nonetheless.

Jerome Larkin has received dozens and dozens of client complaints of cottage industry schemes in probate, and ignores them all, sending out nonsensical letter in Sykes, Gore, Tyler, etc.  He and his staff do not file Ethics Reports under the mandatory reporting act of 2009.  If you complain to the Ill. Supreme Court, they send you to Atty Zimmerman, who I am told was placed there to do nothing.  He is a do nothing kind of guy.

Let’s applaud the feds for going after Dr. Reinstein.

Let’s set up a Bastille day for all the elders drugged against their will, forced to live in nursing homes, deprived any independent third party supervisor by court order (Frake), feeding tube in one end laced with drugs because the patient eats to slowly and a diaper on the other and forced to stay in bed or a wheel chair with alarms.

Disgusting, worse the the most horrid state run Chinese orphanages with dying rooms (


In scary shades of ARDC tribunals who withhold audio when allegations of altered transcripts arise….

this judge is publically lambasted for doing so.

Take a look at this article:

The question is, why is the news so negative on him, when my Tribunal thought it had the right to refuse my motion to turn over tapes, and then just told me to submit my own notes, then when I did, they ignored them.

Like the judge in this article, Jerome Larkin has had many past accusations of covering up fraud, ignoring valid client complaint results in severe financial exploitation (in the millions–Sykes, Gore, Tyler, etc.) and also severe injury to disabled persons via the court appointed guardians and attorneys (Sykes being severely ill, Carol Wyman–attempted murder, read the book, Alice Gore isolated and then 29 gold teeth pulled, a feeding tube implanted because she ate to slow and she was infused with psychotropic meds and starved/dehydrated to death, etc.  We now have a list in Illinois.

How is it Gov. Ryan’s brand of corruption (selling CDL’s for $200) results in his imprisonment for years when 5 young children burn up to death, but Larkin’s cover up and refusal to investigate the near murder of Carol Wyman in one of Illinois’ worst nursing homes and then the starvation/dehdration and drugging continues? (Frake).

Which reminds me, I just got an order today in response to my allegations of severe abuse (a once vibrant man is reduced quickly to a wheel chair, a mysterious fall after entering the nursing home is unattended to, then he is drugged to the point his eyes are dilated in daylight, he can’t lift his head up, he says he wants to die–the court covers all this up by saying they will simply limit any visitors (ie, witnesses to illegal psychotropic drugging, etc.) (Frake).  See below.  Carl Kettler of Bright Star — a professional nursing firm that does not believe in abuse, is now banned from coming near Mr. Frake.  Carl Kettler was to be used as a witness.  Imagine he is banned by Judge Quinn?


Great article on Probate Exception — why is there a probate exception and not a contract exception, partnership exception, etc

So Barbara Stone and I were wondering, what is this “probate exception” that keeps normally tough and anti corruption Federal Courts from providing a second look at what is going on in Probate Court that sometimes can only be described as utterly down the rabbit hole.

Where does this come from?  How does “probate exception” scare even the toughest of judges when the public is clamoring for a RICO presumption in probate, the Federal Court judges cower and dump anything that mentions probate as a regular course of business.

I mean, by that measure, they should dump all personal property disputes that liquidate and divide assest, maybe there should be a business partnership exception (probate is much like winding down a business, assets are sold and liquidated and disputes between the partners as to valuation and ethics in transactions are carefully scrutinized by Federal Court judges all the time when there is diversity, etc.)  I just don’t see the dichotomy why the Federal Courts won’t step in when the State Probate Courts are ablaze with fraud, problems and issues in some cases with a lot of money.  If the Federal Courts can decide multi million dollar cases, tens of millions of dollars of cases, why do they (fallaciously) claim they “don’t do probate” they don’t “have the expertise” (ie, it’s too hard for them to think about probate), when you know all the judges are mostly brilliant, went to ivy league law schools, and/or they have a bevy of brilliant law clerks.  What gives?

Here is a good article from Tim Lahrman on what this animal is, when did it evolve and what are the various standards from state to state.

Click to access 074602.pdf

Read and enjoy.

So is this a probate exception or just a probate excuse from accusations of abuse of civil and human rights?  Why aren’t the federal courts stepping in when the state courts do nothing to protect civil and human rights.? Why do the federal courts now only want large corporate disputes and have forgotten the real reason they exist–for the citizens and not the mega corporations of the US.


From Tim Lahrman–a man on the inside of the diability game

With all due respect to each and everyone of you —–  I am on the inside — I am a ward and have been for 28 years … it has been quite the learning curve and experience, and at times enjoyable being the village idiot — a few years back I tried to buy a large corner lot just off a highway/bypass ramp near my home.  I had visions of building an office building, hiring three paralegals from each state and building an legal advocacy org for the guardianship issue — of course I dream big … but that is how I built the company I lost in my guardianship those many years back —  In sum, ladies and gentlemen — if the journey through guardianship were a long winding pathway — I am well down the path in this journey … I will not look back and join in the experimentation that I have already lived through for 28 years.  I believe I am at or near the end of the path —-  I don’t necessarily like it out here … and I could surely use some help, but what I do not need is hindrance.
Back in the early 1980’s when I was building my company and Lee Iaacco was salvaging Chrysler, I had a quote of his that hung over my desk which read — “Lead, follow or get out of the way” —-  Today my wall bears a picture of Einstein which says —  “Great spirits have always encountered violent opposition from mediocre minds” —  the tagline on my local newspaper blog is a quote by Churchill that says, “The truth is so precious that she must always be accompanied by a bodyguard of lies.”    We all know the truth about guardianship — were we differ is how we frame the legal issues and how we propose to seek resolution —  me, I am on the inside and I am making them live up to what they owe me … I am using the courts and the ADA — the civil rights laws in this country are in fact anti-discrimination laws …. always have been always will be …. they were anti-KKK laws originally and in fact 42 USC 1983 was passed under the “Enforcement Act of 1877” six years after 42 USC 1981/1982 was enacted — anti discrimination laws are for the benefit of “protected classes” of people — (race, age, sex, family status, nation origin etc.) the ADA is a civil rights law that is specific to the class of “disabled” people and their family, friend and associates — you are all protected by the ADA and you are all being discriminated against by association with your disabled loved ones — the ADA is not just about reasonable accommodations —– the ADA is about equal access and the equal opportunity to participate equally in, benefit equally from, and communicate equally effectively as do others with the services programs and activities of any public entity — (emphasis added) (the ADA does not apply to federal entities only state and local)
In sum, I really do not care what anyone says about how to slay this dragon — the civil rights laws will never succeed in stopping corruption — corruption is the by-product of opportunity and like I said to Ken in an email a few days back —–  once the bigot got the Blackman chained to the tree and flogged 20/30 times – fleecing his pockets and terrorizing his family was a piece of cake …
You want to stop guardianship abuse —- call it what it is —- discrimination, and feel free to expose every bigot you come across.  I have provided a template for this public service — simply cut and paste the picture of your favorite bigot and enjoy …..  but know the ADA folks …. it is powerful … and yes you are all victims — on the outside looking in — me, I am on the inside look out, and I am up to my ass in gators —- not really because I can laugh at the gators …. its the damn paperwork ….. (Back to work for me)
In close —-  you guys figure out the logistics —–  I will make myself available to a “gathering” for a “roundtable” — but, it will be my boardroom, those who do not want to listen and learn — please do not bother, I will not show up for heated debate with wild-eyed ideas … the ADA is very specific and I believe I can explain to each of you just how —- the very same things you complain about —- re-cast to a claim under the ADA will provide you all relief.  I will pay my own expenses to meet —-  I will not charge a fee for my time and appearance — I will not provide a bunch of printed material but will always provide sources and citation to anything I would discuss or present —  I am a low low budget dude … I will need sufficient advance notice to schedule my time ….  your call.  I will not attempt to do this on an individual basis with any one or more persons, it is simply too cumbersome and time consuming …  put together a forum to meet — and I’ll make myself available — if you wish —

From the LA Times, if the police arrest you, first thing to ditch is the cell phone?

From Eliot Bernstein, this article explains how some protestors, who engage in peaceful protest, work to protect citizen’s rights, are first advising to ditch cell phones when arrested.

Technically, an arrest is anytime the police start talking to you and you believe you must respond and cannot walk away.  You should always ask the officer, “may I leave now?”  If the answer is “no” at anytime, you’re under arrest.  And it’s not that I don’t love talking to strange and new police officers, but you have to be sure to talk about the weather, tell jokes, ask if you can help them with anything, ask if they’d like a free knitting or crocheting lesson, but general talk about crimes and criminality is off limits.  I just tell them I’m not a PD or prosecutor, so I don’t know anything about X so I can’t answer any questions, but if they send me interrogatories in written form, I’d be glad to answer them in 30 days.

In any case, keep a lock on your cell phone.  Do NOT leave it unattended.  DO use Google cell phone wiper if it gets out of hands which enables you to wipe your cell phone remotely. DO fill your cellphone with stupid stuff like pet videos and junk no one is interested in.  I like to fill my computer files and cell phone with knitting and crocheting patterns and videos, so that would keep them busy learning the strange instructions like 3tr, 2dc, repeat * to *, use Tunisian hook, pm, etc..  I”m sure they’re think it a great secret code to take hours to unravel.

Regardless, here;s the article and thanks, Eliot:

I do, however, think the key to getting better behavior out of our police, which means better behavior from citizens on the street, because police should be the example, is to require them to either go to the law library for 2 hours each week or do 2 hours of online study of caselaw and statutory laws.  It would solve a lot of the problems we are seeing now with police over reaching, abusing authority and then the city, county, states or feds pay for it.

From Mr. Lanre Amu–how did this happen in the US?

This is not North Korea, this is not the mideast or Egypt with severely dwindling human and civil rights!  In Iran they take away a woman lawyer’s children when she advocates for equal rights!

In the US, Mr. Amu was found guilty of practicing law while black!

’Lanre O. Amu

The Peoples Lawyer


B.C.E. (UMn,’84), M.S.C.E. (UMn ’86), M.B.A.(UIC,’89), J.D.(’95)

Lawyer Amu is Innocent, Reinstate His Law License Now!

A Call for an Independent Investigation of Judicial Corruption!

Watch Youtube: Attorney Amu

This is a Peaceful Petition to Reinstate Lawyer Amu’s Law License Now; to Investigate Corruption in the Judiciary, the Entire Court System, the Attorney Registration and Disciplinary Commission (ARDC); and to Reform Our Court System for the Betterment of Our Lives. Given the Impact These Institutions Have on the Lives of Everyone in Our Society, We the People Must No Longer Consent to be Held Hostage by the Lawless any Longer. The People Must Organize to Take Action to Eradicate Corruption in these Institutions. Unless We are Hypocrites, Our Consciences Must Alert Us that Neo-slavery, Racism, and/or Institutionalized Oppression are Violations of Human Rights, Barbaric, and Have No Place in America the Land of the Indigenous Peoples, and Immigrants!

Judicial Corruption is a Far More Serious Crime by these Elites than an Individual’s Armed Robbery, Rape, and/or Murder, Because a Lot More People are Victims from Just One Single Corrupt Judge! To Eradicate Judicial Corruption, Judges Must be Held to Not Just the Letter, But Also the Spirit, of the Solemn Oath of Office they Took When They Assumed the Position of Judges. Judges Must also be Objectively Held to High Moral, Ethical, and Legal Standards in their Stewardships. Judges Must Have Integrity, be Honest, Accountable, and Transparent in their Decision Making and Dealings.

Have You Ever Wondered Why Our Court System is Often so Intimidating, Complicated With Legalese, Motions, Codes, Rules, Statutes, Acts, Ordinances, Case Law upon Case Law, Long-Winded, and/or Financially Beyond the Reach of the Average Joe Blow Litigant? Answer: If Our Court System is More Straight Forward and Transparent to the Average Joe Blow, there Will be Less Need for Lawyers, there will be less Expense, Less Monies Floating Around, Joe Blow Can Easily Decode Legalese, Understand Fully What is Happening, Spot and Resist Corruption! Don’t Be Fooled! Our Court System Can be Reformed to Root Out Corruption, Cut to the Chase, With Less Expense, and in Less Time! But Does the Will Exist to Implement Such Reforms? Ask your Lawmakers!

In 16 Years of Legal Practice, in Which I Had the Honor of Serving Our Peoples of All

Races, and from all Walks of Life, Concerning their Affairs in Our Courts, I have Come

A Call for an Independent Investigation of Judicial Corruption!

Page 2 of 2

Across Many Judges with Integrity Who are Capable of Reforming Our Court System if Given the Opportunity. But Sadly, I Have Also Come Across Many Corrupt Judges and

Justices Who Will Rather Perpetuate the System as it is, and Persecute Anyone Who Dares to Expose How Bad the Court System Really is! Under Our Current System, Justices Sit in Judgment of Lawyers, Deciding Who Can or Cannot Practice Law. But Who Judges the Judges When they are Corrupt? Right Now, No One! As Such, There is Virtually No Risk or Cost to Being a Corrupt Judge. But the Financial and Social

Benefits of Being a Corrupt Judge are Real! Unprincipled Human Beings Regardless of Title or Position Will Do that Which is Beneficial to Him or Her as Long as the Risks or Costs Do not Outweigh the Benefit! Reform is Needed Such that the Risks or Costs of Judicial Corruption NOW Outweigh the Benefits! That is the Key to Deterrence!

Unfortunately, Lawyers Like Myself Who “Naively” File Complaints Against  Corrupt Judges Thinking they are Working to Improve Our Legal System Receive the Shock of their Lives! They are Defamed, Ostracized, Harassed, Suspended and/or Disbarred! By Making a Public Example of Us “Naive” Lawyers, these Justices Impose a Conspiracy of Silence on the Entire Bar! Many People and Entities, Including Practicing Lawyers, are Afraid to Publicly Talk About Judicial Corruption Out Fear for Their Livelihood and/or Other Consequences Should They End Up Before The Judges or Justices! These Judges and Justices Close Ranks and Live in Denial of the Obvious. Who Will Alert Our Emperors that they Have No Clothes? Who Will Bell the Cat?

Without Integrity, Honesty, Transparency, and Accountability in Our Courts, Everyone in Our Society is at Risk of Being a Victim! Judicial Corruption Endangers Savings, Property, Liberty, and Even Life Itself. No One is Safe in a Corrupt Legal System! Today, John Q. Public is the Victim of Judicial Corruption, tomorrow it Could be You! The Next Time you see a Homeless Person on the Street, Think Twice Before You Criticize and/or Look Down on that Person. You May be Looking at a Victim of Failings in Our Court System! On the other hand, the Judge You See in Expensive Suit or Black Robe, Whom Everyone Including deputy sheriff is Rising up For, May Well be an Imposter who Deserves to be Unmasked, and Apprehended, if not in US Courts Perhaps at the International Court of Justice at the Hague! These are Some of the Paradoxes, Inconsistencies, and Contradictions of Our Society While Our Elected Leaders Preach so Called American Style Democracy, Human Rights, and Justice Abroad! Why Preach What is not Practiced in Our Society Abroad? Does Charity Not Begin at Home?

Some Examples of the Effects of Judicial Corruption:

* Imagine Being Sued for All you have in a Corrupt Legal System!

* Illegally Fired Employee Denied Justice in a Corrupt Legal System! 

*Pension and Disability Payments Can be Arbitrarily Denied in a Corrupt Legal System!   

* Injured Persons Denied Justice in a Corrupt Legal System!   

* Elderly can be Wiped out in Guardianship in a Corrupt Legal System!

* Patient Injured by a Hospital May Have no Recourse in a Corrupt Legal System!

ACTION! : Copy, Publish, and Help Spread this Paper Widely to Everyone! Spread the Word! By ‘Lanre O. Amu, the Peoples’ Lawyer,773-728-8249

‘Lanre O. Amu

4550 North Clarendon Avenue, Unit 1404 South

Chicago, Illinois 60640



Elderly Man beaten at NW memorial Hospital by security guardss – suit recently filed

Very scary.  An elderly man eaten in the cafeteria was drug into the basement of the hospital and beaten, after he was told to leave the hospital.

One of the problems with security guards is they often have no background checks done, they have little or no training and are not certified in their jobs to prevent issues before they arise.

If anyone knows more details, please contact me.


From the Frake Estate–why is he being drugged with a cocktail of 4 psychotropic meds

All without meeting the standards of In Re Tiffany, and all over objections of the family members, and the Judge, Carolyn Quinn, just hands back reports of abuse to the abuser!

What this means is YOU can be stripped of your paid up home, placed in Sunrise Nursing Home in Park Ridge, be given these drugs–if your “crime” is being a pain in the butt:

The ward has no known drug allergies [NKDA] and takes the following medications:
Effexor (antidepressant); Lithium Carbonate (mood stabilizer); Donepezil (dementia); Risperdal (mood stabilizer); Tegretal (mood stabilizer); Metoprolo! (blood pressure); Simvastatin (cholesterol); Ducosate (stool softener) and Vultaran Cream (facial

(just for everyone’s edification, Effexor, Lithium, Risperdal and Tegretal are all basically horse tranquilizers.  They are derived from Thorazine, a horse tranquilizer developed in the 1930’s. )

In prior weeks this blog reported excessive drooling and a drool bib.  The court appointed attorneys replied, “drooling is just saliva pooling in the mouth.”  Outrageous.

At first, I was told Mr. Frake received no psychotropic drugs.  Then I pushed for more information, drugs and doctors.  Then I found out Mr. Frake was given  “some but not enough to alter his personality.”  Preposterous.  Then on Thursday I was outraged to find in the annual report, the above cocktail of strong psychotropic meds.  I stayed up all night ran to court early Friday morning to deliver the report to Judge CQ, but she appeared more concerned that the report did not have the proper 2 business day’s notice and she scowled at it as the concerns of the family meant nothing, absolutely nothing and she was tired of having to read these reports. Sigh. Glad I stayed up for that one.  So much tiresome work to produce a quality cover up.

Son Gary reported over and over how his father’s head hung quite low and his father could not raise it upon request, Gary also reported Father Frake’s nearly inaudible speech, his wish to die, the atrophy of muscles in his legs–all denied by everyone else in the court room, but Gary has witnesses.  Father Frake went from a stong, tough, assertive (sometime abusive) man who spoke his mind (not always pleasant), to someone that sits in a wheelchair all day long, head drooping, no high cognitive abilities, saying things he never said before–all on a strong cocktail of psychotropic drugs!

Of course, the court’s vermin blame dementia, but how would anyone know with that cocktail of strong psychotropic drugs/sedatives.

At least In re Tiffany had a diagnosis of mental illness. Father Frake has no diagnosis, at least not in his report.

According to Fla statutes, they declared:

28)(a) “Restraint” means a physical device, method, or drug used to control behavior. A physical restraint is any manual method or physical or mechanical device, material, or equipment attached or adjacent to the individual’s body so that he or she cannot easily remove the restraint and which restricts freedom of movement or normal access to one’s body.
(b) A drug used as a restraint is a medication used to control the person’s behavior or to restrict his or her freedom of movement and is not part of the standard treatment regimen of a person with a diagnosed mental illness who is a client of the department.

Here, Mr. Frake was never even diagnosed with a mental illness to anyone’s knowledge.  He was just a pain in the butt, so Sunrise and their docs shot him up until he shut up and drooled.

I tried to talk to atty JF, who is representing P & B, and he told me he didn’t want to talk about it.  I also tried to talk to him about how the bank–Guardian of the Estate got $69k for managing the Trust of Father Frake for a year–collecting social security checks and a few rents, paying a few bills, but got no comment on that either.  Not a good topic I suppose.

Mr. Alan Frake’s demeanor in the past was not one of passivity.  He could be hostile, rude, obnoxious and prone to outbursts.  So what does Sunrise/the court do?  Drug him until he is stripped of his personality.

The Ward’s mental condition is: Mr. Frake presents a calmer demeanor as compared to what he was demonstrating in 2012 and 2013. His anger, hostility andaggressive behaviors are absent. He no longer has explosive outbursts, and he does not make verbal or gestural threats. His confusion and loss of short-term memory ismore pronounced and in keeping with a patient who presents with a progressive cognitive loss. The ward does not speak in terms of [still] “running his business, getting
quotes or doing jobs”. However, he always asks his visitors “how’s business or how’s your business going”? This part of Mr. Frake, business, lies at his core and will remain with him for as long as he is able to verbalize. (From Annual Report on Ward)

This court’s vermin de jour connected therein, have a long history of ignoring the civil rights and liberties of any person, esp. as illuminated in In re Tiffany, and they head any disobedient elder right to the drug bottle, wheel chair and nursing home.

I have not heard the case In re Tiffany mention anytime in Probate court, so it is a civil rights case keeping the law in pristine condition because it is never used.

From a disabled woman in Mass.–stripped of her new born days after birth!

From a harrowing plight–

BOSTON (AP) — She was 19, a brand-new mother with a developmental disability. Two days after giving birth to her daughter, the state took the infant away and placed her in foster care.


Massachusetts child welfare officials contend the young woman couldn’t properly care for a newborn and insist they acted in the child’s best interests. But the federal government disagrees: It says the state violated her civil rights by discriminating against her because of her disability.

In a new report, the Justice Department and the U.S. Department of Health and Human Services say the state Department of Children and Families — which has moved to terminate the mother’s parental rights — needs to compensate her and give her a chance to prove she can care for her daughter, or it could face a federal lawsuit.

Finally, someone admits that these types of state actions are illegal, discriminatory and a horror show. Let’s pray for this mother and child, that they soon be reunited.

from the article

read the whole story

From Ken Ditkowsky–for black history month, Mr. Amu was practicing law while being black!

The practice of law encompasses not only representing a client but also the maintenance of an environment in which the citizens have confidence in the Judicial System.      Unfortunately, the organized bar and the Illinois Attorney Registration and Disciplinary Commission (and the Supreme Court of Illinois) have taken the position that what the public does not know about the Judicial system will not hurt them.    Ergo, 18 USCA 371 cover-ups are the Rule and not the exception.
To Illustrate, the Illinois Supreme Court has put forth the Himmel decision wherein it decreed that Lawyers much report unethical activity to the IARDC; however, in the Amu case when an American of African Dissent reported corrupt practices of four Judges over about a half decade of practice he was summarily suspended in a racially tinged proceeding for three years.      When I requested an HONEST complete and comprehensive investigation of the very suspicious practices occurring in the Mary Sykes case 09 P 4585 I was suspended for four years even though it was apparent to everyone that the miscreants failed to even bother to comply with the jurisdictional statutory requirements and were in direct violation of the Americans with Disabilities Act.     When JoAnne Denison picked up the request for an investigation in her blog, even though the State Statute provided immunity for both she and me 320 ILCS 20/4 and her blog was entitled to the protection of 47 USCA 230 Mr. Jerome Larkin (administrator of the IARDC) sought a three years suspension and an interim suspension.
So much for the Rule of Law and so much for the FIRST AMENDMENT TO THE UNITED STATES CONSTITUTION.      Petitions for Cert are iffy at best and rarely granted.     Who cares about the elderly and the attorneys who are dumb enough to comply with 18 USCA 4, Himmel etc. –   They at stool pigeons!      They are interfering with the due course of business of the cottage industry of elder cleansers and as Attorney Black pointed out reminding the public of the dark days when a score of prominent jurists were sentenced to Federal Prison and several score more were required to resign their judgeships.       
The Amu case is part of the celebration of BLACK HISTORY MONTH and a reminder of the hypocrisy of not only the people who are temporarily in power as government officials and the leadership of the Americans who happen to have some history emanating from  Africa.       All are aware that Mr. Amu in practicing LAW had as part of his duty to his client to expose corruption within the judicial community.     The nature of and the subtle racism of Mr. Larkin all note that Dr.  Martin Luther King’s journey to free all Americans fell short.   It is still a crime in Illinois to “ practice law while Black!”     A person with a dark hue to his sign according to the Illinois Supreme Court “has to know his place”     How dare he report criminal activities of jurists who have the approval of Jerome Larkin!!!
It is a shame that the Supreme Court of the United States is not interested in judicial corruption or the vestiges of JIM CROW that are so prevalent in the Courts of Illinois.       This is a real lesson for BLACK HISTORY MONTH!      It is shame that Illinois this year will celebrate Dr. King’s birthday and Black History month with a reenactment of the Dred Scott Decision

From C-Span, the Congressional Hearings on Elder Financial Abuse

A good link to see what the Federal Government intends to do about all of these problems:

While the chair from Maine talks mainly (pun intended?) about family members taking finanacial advantage of elders, it is our experience that combined with these issues are then the probate courts and guardianships take advantage of that senior in their target-isolate-medicate-drain and eliminate programs now bustling in the nation’s probate courts and for which victims are becoming mightly vociferous in their objections to having a feeding tube implanted at one end, a diaper at the other and then the nursing home does little to nothing for $5k, $10k and sometimes even $15k per year.

If that isn’t severe abuse, torture and financial exploitation, I don’t know what else is.  Atty Helen Stone’s case is a classic example of that. Brother takes $625k and she reports it, and a g-ship is opened.  Two miscreants are appointed that drain $1.4 million in 20 months.  Mrs. Helen Stone now has a feeding tube at one end and a diaper at the other.  While paying for a nursing home, she is assigned aides to ensure the case is never documented, that the family is isolated from her, and the feeding tube is laced with a deadly combination of psychotropic drugs never dispensed in accord with Florida law which declares in Section 364 that chemical restraints, incluidng holding a person down to shoot them up with psychotropic drugs is never a part of any approved therapy or treatment for a mental disease or defect–and in Mrs. Helen Stone’s case, she never even had a mental disease or defect.  She should have a guardianship limited to the recovery for financial exploitation and nothing else.

So, we will keep on writing to these Senators and keep on documenting these cases.



CALL FOR DECLARATIONS TO SCOI opposing the ARDC’s Petition for JMD’s Interrim Suspension

For those of you that are familiar with the Petition for my suspension under Sup. Ct. Rule 774 based upon the ARDC’s allegations that I and this blog is a danger to the public and to my clients because this blog contains numerous false and misleading statements or false statements made with “disregard for the truth”, now is your chance to tell the ARDC and the Supreme Court of Illinois that is a preposterous allegation.


This blog is honest, accurate and truthful.  We do not hide the truth. We believe in human rights, civil rights and liberties, and most of all, free speech.

Go ahead and let me know your thoughts and I will send them along.



see below, change as YOU desire.  don’t let the ARDC or the Supreme Court of Illinois let YOU think.  Don’t let them make their speech your speech.  You say what you want, and what you know.  You have YOUR truth, now speak YOUR truth. Change as you want and I will send it to the Supreme Court of Illinois.


In Re:


Reg. No. 6192441

Commission No. 2013 PR 0001


The undersigned doth deposes and saith:

1.     My name is _________________________ and my address is   ____________________________________________________________________, and this is in regard to the ARDC’s current mission to take away the law license of Attorney Joanne Denison (“Ms. Denison”) for merely running a blog that tells the truth about the fraud on the court and the lack of respect for the US and State Constitutions and the Illinois Probate Act in and without the Illinois Probate System.
2.   ______ I am very familiar with Ms. Denison’s blog and have read about ____ posts on it.
3. _______ I have read the complaint in Ms. Denison’s case and am familiar with it.  I understand that the ARDC desires to take away Ms. Denison’s law license because she blogs about fraud and corruption in Probate and other cases.  I believe it is wrong to go after someone who exposes only the truth.  I have read the blog and Ms. Denison’s blog is extremely helpful to Probate Victims and their families.  I am very familiar with her work, and she does in fact tell the truth.
4.________ I have read the ARDC’s petition for an Immediate Suspension of Ms. Denison’s Law License and I know that she helps many, many people without any payment demands, and many cases she takes are pro bono with no expectation of payment.  No other attorney admitted to the bar in Illinois does that.  Without her assistance, dozens of indigent and lower middle class families would have no help and no hope in these horrific guardianship cases.  She helps everyone that comes to her as best she can.
5. ________ I have been helped by and rely upon Ms. Denison on a pro bono basis or for what I can pay, which is only a small portion of the true legal bill.  Without her, her I would not have any representation.  Prior to using Ms. Denison, I had sought help from approx   ____ number attorneys and paid $_______________–all to no avail in my case.
6._______ I know the Sykes family well or Gloria Sykes and what Ms. Denison says about the Sykes family is true and accurate.
7._______ I have read the Petition for Immediate Suspension of Ms. Denison’s law license and I strongly disagree with it.  This document falsely states that Ms. Denison is a danger to the public and to her clients and that she makes false statements against judges and judicial officials, none of that is true.
8.________ The immediate suspension of Ms. Denison would leave dozens and dozens of clients without help or representation, including myself.
Her suspension must not happen.  She is not a danger to anyone other than those that want to cover up the truth.
9.  Other comments:
10.  I give Ms. Denison permission to post my comments and declaration but not the ARDC.
Further declarant saith not.
I hereby declare that the above statements are true and accurate to the best of my knowledge; if called to testify, I would testify as to the same.

Respectfully submitted;

Name printed: ________________________________
Dated __________________, 2015

From Atty Barbara Stone–her information and Notice of Appeal

Subject: Notice of Appeal
Date: Feb 5, 2015 10:55 PM
Notice of Appeal attached.
Thanks to the press and radio shows who have hosted me to expose the vicious and massive financial fraud and brutal abuse of my elderly defenseless mother.  I and other victims of this unspeakable horror and available to meet as a group or individually and your inquiries are welcome.  My mother is under the control of adult predators who are caging, isolating, mercilessly drugging my mother with psychotropic drugs that have black box warnings, who have forcibly removed her from her home and forcibly restraining her in a lock down nursing home warehouse so they can operate their scam in secrecy.
These body snatchers and adult predators must be exposed. They are savages, terrorists and thugs using a guise of “guardianship”  and a scam racketeer court  to perpetuate a string of crimes.
A copy of the mounds and volumes of fraudulent bills of these predators is available on request.  These thugs are embezzling my mother’s assets as they restrain her in a vile nursing home that is nothing more than a medicare scam operation. They systemically cut open the stomach of elderly disabled adults like my mother to implant a feeding tube that they lace with drugs to keep them incoherent all the while using the very same predator aide cohorts who caused her to be emergency admitted to the hospital to terrorize my mother and keep her isolated in a wheelchair.
This is the cast of miscreants who have snatched my mother into this terrorist organization:
 1. Jacqueline Hertz has been engaged in this terrorist criminal scam for years  – targeting and preying on vulnerable adults to steal their assets.
Jacqueline Hertz is so brazen that she has added herself as a beneficiary to the fraudulent documents she conjures up.  She has a real estate license and sells the homes of the vulnerable adults from under them. She takes out reverse mortgages, home equity loans, sells their property for a pittance of its value to her cohorts.  Nothing stands in the way of her defrauding the vulnerable adults she controls.
In my mother’s case, she conjured up a fabricated petition accusing me of authorizing “unauthorized” medication after her sleazy aides administered miralax to my mother.  In “guardian-speak” miralax is the drug of choice that they use to start their drugging regime.  For you see, miralax is known as a laxative to the unsuspecting public but it is really a dangerous drug that is contraindicated for seniors as it causes “agitation” and can shut down the kidneys and the heart.  It was pulled off the shelf by the FDA.  Jacqueline Hertz then uses the agitation that she herself causes by forcing elderly adults to ingest this deadly drug to conjure up an accusation against a family member that they “agitate” their loved one so she can trump up a fraudulent petition to obtain a fraudulent “isolation”  orders isolating her prey.  This is a vital step in her march to drain the assets of her prey and subject them to unimaginable abuse in secrecy.
She then uses the agitation that she herself caused as an excuse to give these vulnerable seniors even more dangerous drugs such as rispiradol and Haldol and seraquel to make them incoherent.  Jacqueline Hertz has caused the death and torture of untold defenseless adults.  She is a black widow operating as a guardian.
2. Blaire Lapides is Jacqueline Hertz’s cohort in this vicious scam of extortion of my mother. Blaire Lapides is my mother’s nightmare version of Nurse Rachett –  Blaire Lapides paid herself over $50,000 to isolate my mother from the world.  Blaire Lapides has taken possession of my mother’s assets and in collusion with Alan Stone is draining my mother’s life savings. She gave my mother fake glasses after her sleazy aide brought my mother’s glasses and caused her to headaches for months. Nothing is too deranged for her.   Blaire Lapides works for Junior Achievement in Broward and handles their grant funds.  Go figure?  Wonder where those funds go…..
3. Roy Lustig has been found guilty of crimes by the 3rd DCA – fraud on the court, perjury and repeatedly lying under oath.  He is an adult predator and like a child molester should be barred from involvement with elderly adults.  His fraudulent bills are the
4. Alan Stone has embezzled over $625,000 from my mother.  He was fired from one of his many financial firms for forging client documents and from a second firm after he embezzled my mother’s assets via a series of secretive wire transfers and forged checks.
5. Linda Tennant Blest Weitz Stone is a stockbroker with Merrill Lynch.  She was also fired by the same firm when she colluded with Alan Stone in his forgery.  She is colluding with him in his embezzlement scam and the vicious abuse which my mother is suffering.
6. Mark Raymond is an attorney with Broad and Cassel. He devised and  orchestrated an illegal agreement that stripped my mother of all of her civil and human rights and liberties and in collusion with Alan Stone threw my mother into into this vicious pit of terrorists in order to extort over $187,000 in legal fees.
These are the diabolical fraudsters that Michael Genden, the miscreant judge placed in control of my mother
Michael Genden is an arrogant bully who has a beef with me because I have repeatedly objected to the illegal agreement and these thugs who are terrorizing my mother.  For some reason, he has taken personal offense to my objection to this illegal agreement pursuant to which he drains my mother’s assets and empowers these creatures to beat, drug, restrain and commit unspeakable abuse against my mother.  He have never seen my mother.  His court does not have even an iota of a pretense of addressing my mother’s wellbeing.  It is used to order the draining of her assets and where he and Roy Lustig ex parte to commit vile malicious acts of retaliation against me.
I have not been able to see my elderly mother in  9 months because these savages are determined to deprive my mother of her daughter because I have exposed their  criminal operation.  More important and more devastating my mother is being denied her wishes to see her daughter.  She is being forced by Michael Genden to pay these miscreants to abuse her.  These are not garden variety thugs.  They are committing crimes against humanity. .
It is imperative to bring into the light and  expose to the public the filthy dirty secrets of the probate court that uses guardianship as a code word for an extortion enterprise.
Congratulations to Adam Walser of the I-team who won the prestigious Albert DuPont award in journalism for his extraordinary coverage of this special victim’s crime that is the rampant crime of the decade.
Eliot, Attorney Schwager and Atty Denison, please post and virally distribute.
Thank you,
Barbara Stone
the notice of appeal is below

Third DCA Case No:  _____________
Lower Tribunal Case No: 12-4330
Expedited Appeal.

Appellant hereby moves this honorable Court to expedite this appeal on the following grounds:

1)    Appellant wishes to make clear to this Court the wanton, willful, contemptuous, reckless abuse and cruelty to which her mother has been subjected by Judge Michael Genden.  She was deprived food, medical care and attention, chemically restrained and emergency admitted to the hospital on December 9, 2013 with malnutrition, dehydration, failure to thrive, contusions, fractures, infection, hernia and other life threatening conditions all under Jacqueline Hertz, Blaire Lapides and aides provided by them and Judge Michael Genden who handed back reports of the aggravated abuse right back to the abusers (hereinafter “tortfeasors”).
2)    The Notice of life threatening danger to Appellant’s mother sets forth this wrongdoing and the current life endangering conditions of Appellant’s mother, to wit:

a)    She is being chemically restrained with psychotropic drugs with black box   warnings (an example is shown in Exhibit A) and the FDA has contraindicated for anyone over 60 years of age. Further, these drugs are being administered involuntarily in violation of Florida Statutes 394 and violate 458.331- Regulation of Professions and Occupations, the relevant sections of which is set forth as Exhibit B.

a)    Appellant’s mother has a red inflamed sore that is infected and blistered on her face.  This could be shingles, some other infectious disease or bed sores.  These conditions are very painful and can be deadly and can quickly spread

b)    This condition is also extremely dangerous.  She needs to be in the hospital immediately to have her looked at by specialists

c)    Appellant’s mother stomach is grossly extended and this could be a tumor or encopresis which could be deadly conditions.  Appellant’s mother is not being properly fed, she being fed by a feeding tube although she can eat, is being denied the pleasure of chewing and enjoying food by mouth and the feeding tube is used to ingest her with drugs.

d)    Appellant’s mother is being restrained in a wheelchair where she is forced to sit although she can walk, she is not permitted to walk and is being denied rehabilitation and exercise

e)      These life threatening conditions can only be detected by an MRI or body scan and Appellant’s mother needs to be taken to the hospital for treatment by a medical specialist and testing with the needed hospital equipment.
a)    Michael Genden has knowingly and maliciously endangered Appellant’s mother.   Appellant’s mother is being caged, chemically restrained, isolated, removed from Appellant, forcibly removed from her home, restrained in a facility against her will and drugged with psychotropic drugs that carry a black box warning that they are not to be used on an individual at her age and condition.
b)    Mrs. Helen Stone has repeatedly stated to caregivers, visitors and anyone who will hear, she wants to go home, she wants her daughter by her side and she wants to have her daughter care for her. These are her inalienable human and civil rights and liberties with which the state must not interfere.
c)    It is abundantly obvious that Michael Genden views Appellant’s mother as a source of unlimited revenue for the predators he installs as their captors.
d)    There is not even a pretense that he has an iota of interest regarding Appellant’s mother’s wellbeing.  He has never even seen Appellant’s mother and denied hearing and investigating rampant reports of abuse.  He repeatedly hands all reports of abuse back to the abusers rather than appoint an honest, independent investigation of the issues.  It is clear this judge is attempting to covering up the abuse.  Moreover he viciously retaliates against Appellant when she reports the abuse.
e)    Michael Genden has ordered the draining of approximately $700,000 from Appellant’s mother’s assets to abet the staged, fraudulent litigation by these miscreants.
f)    Michael Genden has failed to request these miscreants to marshal over $625,000 in assets embezzled by Alan Stone and return them to Appellant’s mother’s account.
g)    Michael Genden is a clear and present danger to Appellant’s mother.
h)    Because Appellant’s mother is elderly and frail and because Michael Genden is isolating Appellant’s mother and endangering her life, this matter is urgent and exigent and Appellant seeks an expedited review.
i)    Michael Genden has a pattern and practice of abuse, aggravated abuse and exploitation of elderly disabled adults in the case at hand and in other probate cases.  Michael Genden has terrorized Appellant and other concerned family members in other cases who have reported abuse in his court. Appellant has been contacted by family members

of his numerous other victims whose rights have been viciously assaulted in his court and are so fearful of further retaliation that they seek anonymity.
j)    One of Michael Genden’s victims revealed that her loved one has experienced the same unspeakable abuse by guardians who were placed in the control of her loved one by Michael Genden.  Her loved one was subjected to the same terror, mercilessly drugged, isolated and terrorized by guardians. Her loved one died as a result of abuse and being
forced to ingest psychotropic drugs – all in derogation of relevant Florida laws that require due process safeguards when administering such drugs involuntarily.  It has been almost a year since Michael Genden abetted the murder of her loved one.  During that time Michael Genden has empowered an arsenal of predator attorney to deplete her loved one’s estate.  Her legacy is being drained by predators.
k)    Michael Genden ordered the diversion of the inheritance rights of another victim to be paid to an attorney that was terminated by this victim.
l)    Michael Genden does not comport himself as a judge – his conduct is that of a bully, a thug.  It is disgusting when dealing with litigants in any matter – it is inexcusable and of a criminal nature when dealing with elderly disabled adults whose civil and human rights, liberty and due process are trampled in his court.  Michael Genden has shut down the court and removed public access to the files.  Michael Genden has denied my access to my own file.  Michael Genden has refused to permit my advocates and witnesses to appear in court.  He has removed them from the court.  Michael Genden is hiding and covering up his abusive court.
m)    Michael Genden was transferred to probate court without any credentials whatsoever to deal with elderly disabled persons and without any knowledge of the numerous Federal and State Laws that protect such person including Florida Statutes 825.102 the relevant portions of which provide as follows (the complete statute is attached as Exhibit C):
(2) “Aggravated abuse of an elderly person or disabled adult” occurs when a person:
(a) Commits aggravated battery on an elderly person or disabled adult;
(b) Willfully tortures, maliciously punishes, or willfully and unlawfully cages, an elderly person or disabled adult; or
(c) Knowingly or willfully abuses an elderly person or disabled adult and in so doing causes great bodily harm, permanent disability, or permanent disfigurement to the elderly person or disabled adult.
A person who commits aggravated abuse of an elderly person or disabled adult commits a felony of the first degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
n)    Other Federal laws including the Americans with Disabilities Act, the Elder Justice Act and the Olmstead Act are apparently not even known to him.  A copy of the directive of the Department of Justice dated December 14, 2014 summarizing some of these laws is attached as Exhibit D.
o)    Judge Michael Genden, Jacqueline Hertz, who purports to be a professional guardian, Blaire Lapides, an estranged opportunistic distant relative who is not compliant with guardian requirements and using her appointment as co-guardian to abet Alan Stone’s embezzlement and to extort and enrich herself with Appellant’s mother’s assets and Alan Stone have committed a string of felonies including endangering the life of an elderly person, embezzlement, drugging with unlawful psychotropic drugs in violating of Florida Statute 394, forcing Appellant’s mother’s from her home, failing to integrate a disabled person into the community and restraining them in a facility against their will.
p)    These tortfeasors and miscreants are using the same abusive aides and caretaker agency who caused Appellant’s mother to suffer life threatening conditions where she almost died defiantly and deviously in defiance of Appellant’s objection another gross abuse and criminally negligent act by Michael Genden and the predator guardians and their attorney. Further the aides and attendants are not only criminally culpable but they are shamelessly exploiting Appellant’ mother with a pretense that they are attending her needs when in fact they are deviously forced on Appellant’s mother not to attend to her but to keep her isolated in her room, keep her from obtaining any semblance of “therapy” in the vile nursing facility that is caging Appellant’s mother and they are isolating her and preventing her from associating with her family and friends and spiritual leader and to invade Appellant’s mother’s privacy and serve as a mole to harass and bully Appellant and “report” back to the abusers and tort-feasors.  Attached as Exhibit E is a copy of various “notes” that have nothing whatsoever to do with the care of Appellant’s mother – they are only unlawful and stalking acts by these aides who are committing criminal stalking.    Attached are Exhibit F is an illegal directive from Roy Lustig demanding that Appellant’s mother be isolated from her and from her spiritual leader. This shameless brazen conduct by all miscreants involved with Appellant’s mother is willful, wanton and reckless abuse.
q)    Michael Genden has unlawfully authorized the tortfeasors to fail to provide accounting, bonding, verification of reports, fees.  He has a pattern and a practice of ordering the sale of the home of an elderly adult for pennies on the dollar and allowing elderly adults to be forcibly removed from their home.
r)    Jacqueline Hertz, the predator who is attempting to deprive Appellant’s mother of her life and draining her assets in collusion with Michael Genden has a pattern and practice of abuse, isolation and extortion. Her criminal conduct was exposed to Michael Genden and in response Michael Genden removed access to the files in the probate court to cover up her abuse instead of removing her as a guardian.
17)The Appellant wishes this court take note of the following:
·    This 3rd DCA Court just quashed the order of Miami-Dade Judge Bernard Shapiro who unlawfully ordered the clerk to stop accepting pleading from a pro se litigant and required her to get a lawyer.
·    This same type of unconstitutional “Order” was issued by Michael Genden as appealed in Appellant’s Notice of Appeal.  Michael Genden issued an Order on January 6, 2015 “Prohibiting Barbara Stone from filing any more pleadings” just as did Bernard Shapiro.   As shown on the “Order”, Michael Genden copied each of the other probate judges with this unlawful order.
·    This is an attempt by Michael Genden to collude with other judges in obstructing justice and misusing and abusing power.
·    This unconstitutional order is also an attempt to repress litigants from exposing the disgusting staged pleading filed by the predator guardians and attorneys who have infested Michael Genden’s court.

a)    Michael Genden and the other probate judges in Miami Dade County are terrorizing and destroying families.
b)    Because of the dire nature of Appellant’s mother ‘s condition and because other victims are suffering heinous abuse and exploitation in Michael Genden’s court, it is imperative that this full Court is aware of his conduct and makes a ruling en banc to disqualify Michael Genden, reverse, nullify and quash his orders and order that Appellant’s mother be returned to her home under the care of Appellant.

WHEREFORE, Appellant respectfully requests that this Court disqualify Michael Genden, reverse, nullify and quash his orders and order that Appellant’s mother return to her home in the care of Appellant.  Appellant requests an opinion be issued en banc on an expedited basis.

Dated:  February 6, 2015
Barbara Stone
244 Fifth Avenue – B 296
New York, NY  10001
Tel:  212.994.5482

here is the link to additional information and exhibits:

From a Probate Victim in Florida–Theresa Lyles and her story, an affidavit of terror

From Ms. Theresa Lyles, another probate victim in Florida, for being terrorized by the probate court system there, and I believe Judge Genden, Barbara Stone’s abusive judge:

I, Teresa A. Lyles, after being duly sworn deposed and states to the best of my own personal knowledge and belief hereby state the following:
1. I am an interested party in the matter of the Guardianship of Carmen Tozzo, (hereafter referred to as “My Family Member”) who is my mother and who currently resides in Ocala, Florida. and is currently being held at Memory Lane (a lock-down facility).
2. My Family Member, was placed into a court ordered guardianship on the date 6th day of June 2011 ( emergency temporary gship- Bonnie DiVito),  November, 2011 (1 51 plenary – Marilyn ‘Lynn’ Belo), 16th day of August, 2013 (2nd plenary – Carol J. Preiss), and (Andrea Wolfkill, 2nd emergency temporary and 3rd plenary) in April 2014 in the City of Gainesville Probate Court by Judge Victor Hulslander (! 51 temporary). Judge Stan Griffis (! 51 plenary). Judge Mary Day Coker (2nd temporary and 2nd and 3rd plenary). [Preiss and Wollkill were appointed though they did not have the proper guardianship credentialing at the time of appointment.]
* My Family Member’s home was paid for, she had great care in her home, and sufficient assets to continue care as such. She did NOT need a guardian, but was the target of an attack on her assets.
a. The Guardian(s) appointed were: Bonnie Divito (] 51 temporary); Marilyn ‘Lynn’ Belo (! 51 plenary); Carol J. Preiss (2nd plenary), and Andrea Wolfkill (2nd temporary and 3rd plenary).
b. The attorney(s) for the Guardian(s) was/were Monica Brasington (DiVito), Judith Paul
(Belo), Virginia Griffis (Belo, Preiss, and Wolfkill).
c. My Attorney(s): Joshua Silverman (fust and current); Nancy Baldwin (my second attorney), Zena Dupee (my third attorney).
d. Judge(s) were: Judge Victor Hulslander, Judge Stan Griffis. Judge Mary Day Coker
e. Others involved in the case were. John Ramsey. attorney appointed to my mom (not present and not notified of competency hearing); Carmen Julian and Elena Clark (sisters) – retained M. Brasington to file for mental competency hearing.
a. My Family Member suffered the following physical abuses:
* trauma bruising to face/head, cuts/abrasions to right hand/left hand;
* bruising on left arm (above elbow)/left knee/right knee;
• un-bathed for long periods of time, left unkempt and in dirty diapers (dirty/stained clothes);
* left with UTI (infection/fever);
* dehydration (multiple times);
* more than a dozen falls in two facilities;
* refusing to provide proper medical attention after falls/head injury;
* multiple visits to Emergency Room with overnight hospital stays (North Florida Regional
Medical Center, Gainesville, FL, and West Marion Community Hospital, Ocala, FL);
* withholding/discarding dentures and prescription glasses.
[I contacted DCF and Ombudsman on first facility, but My Family Member continued to
experience injuries and visits to the ER – all 3 guardians FAILED to investigat/be proactive
about continuous injuries and lied to me, and had the staff provide inconsistent information to me, about cause(s) of My Family Member’s injuries].
b. My Family Member suffered the following emotional abuses:
* isolation from family for long periods of time (children, grandchildren, niece, nephews,
* restriction from church/church members/pastor/prayer group members;
* verbal abuse by guardian (Belo) in front of paid caregivers and other family;
* locking bedroom doors/limiting access to room/bathroom at Harbor Chase;
* restriction from mom’s normal diet (food/drink);
* verbal abuselharassment toMy Family Member children/grandchildren in front of My Family Member; changing locks on home door (more isolation);
* changing/cutting off telephone; restriction of communication on any phone in either facilities;
* hiring an abusive caregiver while still in home;
* restricting My Family Member and other family with use of native language and threatening loss of visitation if not compl iant;
* isolating My Family Member in hospital, refusing to allow others to see her in hospital;
restricting any touchinglhugginglpbysical contact (cburch);
* deception about moving My Family Member from her home (“we’re going to a hotel while
we paint your house”) and moving My Family Member from first facility (“we’ re going to
* not allowed access to mail on a regular basis;
* not allowed access to finances/any of her money to spend;
* allowing abusive man (David D. Clark, Ms. Julian’s boyfriend) to be in close proximity to
My Family Member despite a ‘no trespass’ order on home/property.
c. The My Family Member suffered cruel and abusive isolation, overmedication and chemical restraints as follows:
* as of May 2012, My Family Member was on the following medications – Amloclipine,
Atorvastatin, Citalopram, Metropolol, Lisinopril, Hydrochiororthiazide, multiple narcotics. My
Family Member has only one kidney, with most of these drugs being potentially lethal were to her health. My Family Member has appeared to be heavily medicated, incoherent, and with slurred speech on numerous occasions since May 2012. [NOTE: I have been kept completely in the dark as to her medication regimen. My Family Member continues to be on two anti-depressants, and to my knowledge has NEVER been diagnosed with depression.];
* blocking the phone number of The Family Member’s nephew and his family in Miami;
* disconnecting phone number and not providing new number to My Family Member’s
• changing locks on My Family Member’s home and hiding the key;
* removed My Family Member’s bed and replacing it with a small and constrictive hospital bed where she suffered bruising to her arms and head on this bed) in her home;
• placing My Family Member in a ‘lock down’ mental section offsite nursing home without
EXPERT medical diagnosis of dementia (criteria for placement in the unit was dementia,
mental illness, and/or flight risk);
* not allowing visits for holidays (Easter, Thanksgiving, Christmas and birthdays) with children and grandchildren; PROHIBITING My Family Member from attending her own church;
* isolation from prayer groups/spiritual leaders;
* changing My Family Members medical providers (primary care) of 13 years to someone
handpicked (friend) of guardian.
a. My Family Member’s estate suffered the following financial abuses/loss/dissipation:
* The estate was valued at approximately $250,000, including savings/checking/value of the house and husband’s social security/law suit settlement with current value at less than $30,000;
* guardian did not have real estate license, but sold home well below market value without the knowledge or consent of My Family Member (house not flipped to my knowledge);
* sale of the home without the consent of beneficiaries;
* frivolous motions/expenses filed by Belo to drain My Family Member’s account;
* hiring a “private” sitter from June 2012 to November 2012 (employed by Belo) to sit in first facility after the My Family Member was removed from her home;
* demanding multiple emails weekly on visitation time/visitors when the schedule was the
same (done to charge $75 + to read each email);
* guardian’s fees varied from reading emails to filing bogus motions/petitions in court (making mistakes, then refilling);
* guardian filed a motion to restrict family to grave sight of My Family Member’s deceased
husband (paid herself to file motion);
* to date, I have not seen or been allowed to see any financial statements/spending ledgers either via the guardian or the courts;
* My Family Member has NEVER been in possession of Or allowed any of her money to
b. The family and rightful heirs of the My Family Member suffered:
* slander, harassment/threats of arrest and call DCF on me (at my daughter’s wedding, which My Family Member attended with guardian’s permission);
* slanderous and libelous law suit filed against me (February 2013);
* violation of civil rights (free speech/religion);
* malicious persecution and target of malfeasance;
• severe stress, loss of sleep, depression, loss of income;
* physical restriction from seeing My Family Member without court hearing;
* isolation from My Family Member with restricted visits in home (always in the presence of a caregiver) and in the first facility (only allowed to sit in a limited area and rarely allowed in My Family Member’s bedroom/outside);
* not allowed to take My Family Member outside for fresh air or walks (first and second
* restricted my visitation after seeing mom in church and hugged/kissed her (guardian claimed this was a “violation” of visitation);
* harassing a business associate (sending a threatening letter by mail) claiming My Family
Member owned stock in associates company (did not have a public company).
[Until October 2013, visits were always in the presence of a staff member/guardian’s employee who constantly interrupted and oftentimes harassed me and my children. When My Family Member left Harbor Chase, and when asked about the harassment by her and her staff, the assistant director (Edith) stated that she was ‘just doing what she was told to do by guardian’].

a. The fraud that commenced the guardianship proceedings included:
* inappropriate filing of court documents (motions/petitions);
* removing My Family Member from home and the first facility without notification to
• no hearing to revoke the privileges of the legal health care surrogate (Lyles-Harris);
* not allowing My Family Member to view her mail/financial statements on a regular basis
(done rarely);
* filing law suit against me on behalf of My Family Member (against provisions of mental
competency) – and guardian placed herself as My Family Member’s attorney with fees paid to herself for filing law suit;
* perjury in court as to “misconduct” of family members daughter;
* failure to provide consistent medical/medication information about My Family Member to
her children/legal health care surrogate;
• sale/removal of My Family Member’s personal belongings
(furniture/clothes/jewelry/pictures) from home and first facility without consent and
knowledge, and without the knowledge and consent of the children/beneficiaries;
* failure to act in the best interest of the My Family Member (all 3 guardians);
* failure to PROTECT the My Family Member from abuse/neglect (at facilities and in home);
• moving My Family Member to a facility without court order/permission (from home to
Harbor Chase and Harbor Chase to Memory Lane).
a. Judicial abuse of power included:
• no legal representation present for My Family Member at competency hearing (or ever);
* not given the opportunity to be at the hearing or be heard in a timely fashion;
* no evidentiary hearings;
* rarely given the opportunity to testify/speak in court, and ignored when I was able to speak;
* not following proper courtroom procedures (timely submission of motions/petitions);
* physical restriction of My Family Member’s children without any legal or medical
* allowing sale of My Family Member’s home without consent/notice to My Family Member
and legal beneficiaries;
* allowing guardian to make health care decisions without hearing to investigate terms of legal will or My Family Member’s preferences;
* judges giving guardian(s) power to abuse/sequester My Family Member and to isolate family (via terms of visitation);
* no audit performed by Court Clerk or by court monitor;
• appointing guardians Preiss and Wolfkill without the proper guardianship credentialing in
place (Judge Coker);
* violation of guardianship statute in Florida;
* violation of constitutional right to worship;
• violation of constitutional right to free speech (speak our native language);
* violation of the right to have a say in health care/health care providers;
* violation of the right to legally reside/maintain residence in My Family Member’s own home;
* violation of civil and constitutional rights of parties were: Carmen Tozzo, Teresa Lyles,
members of St. Patrick’s Church, Pastor Fr. Roland Julien;
* to my knowledge, My Family Member was never served with the “Petition to Determine
Capacity” nor were her rights read to her by any process server. I was never properly served with the “Petition to Determine Capacity”, and received paperwork in the mail shortly before the competency hearing;
* refusal of Judge (Griffis) to grant me the guardianship of My Family Member (filed by Mr.
Silverman on my behalf June 2011), without any substantiated reason/cause;
* refusal of my request to meet/interview appointed guardians;
* retaliation from the court/attorneys included restricting visitation (i.e., 6 weeks from June -July 2012);
* restrictions of where My Family Member and family could sit/visit;
* restricting My Family member and family from touching/bathing her or attending to
bathroom needs;
* restricting My Family Member from leaving facility with her family (needed attendant if
leaving home);
* allowing guardian to place restrictions without substantiating accusations against My Family Member’s extended family;
* approving “no objection” motions to appoint guardians (April 2014) without my knowledge
or consent;
* complaints against Belo were sent to Judge Griffis and Hulslander (by myself, Mr.fMrs.
Hernandez in Miami, and by Mr. Silverman) and were answered with further
retaliation/isolation from My Family Member. [NOTE: numerous objections in court were
made to Judge Griffis and Coker, but were denied any resolution regarding selection of
guardian and visitation restriction].
* the Advance directives in place were not honored and there was no statutorily required
hearing (Fl St 765) to rule on the Advance Directives even though they were known to the
court. [My Family Member’s legal and signed WILL was dated October 30.2007. in which
granddaughter named as health care surrogate, and myself as Executor, but courts/guardians did not adhere to document. Advanced directives were prepared by Belo and signed in 2013.]
* attorneys hired by me were ineffective or possibly complicit – Nancy Baldwin and Zena
Dupee (who literally took $3500 + for doing NOTHING) were useless, did not defend my best interests, and tried to negotiate/force me to negotiate with the guardian against my wishes and knowledge; [although he got Belo to resign, Mr. Silverman was not responsive to many of my requests.]
* The examining committee (May 24, 2011) consisted of Brian Cooke, MD (psychiatrist),
Arlene Nichols, RN, and Gerrie Scully, RN, and Carlos Rodriguez, MD (Fellow, observer. did not participate)’ who are licensed as MD and RNs. Each examiner spent approximately
~minutes with My Family Member (total time was I hour and 5 minutes). [NOTE: My
Family Member was never evaluated/tested for illicit drugs in her system or delirium.
There were no Geriatric/Neurology MD’s present, and diagnosis of ‘dementia’ is
inconsistent with proper diagnosis pattern for this condition, According to Alzheimer’s
Association – “diagnosing dementia is difficult. Becoming forgetful does not necessaril y mean that you have dementia, and could be a sign of stress or depression. Diagnosis is made through a complete assessment that considers all possible causes, including medical history, physical exam, neurological exam, mental status tests, brain imaging, and diet patterns.”
* Ms. Brasington was hired by my sisters (Julian and Clark), but Brasington was also the
attorney for Ms. DiVito;
* Ms. DiVito was personal friends with Ms. Clark – not revealed until September 2011
hearing, but Judge Griffis did nothing;
* continued personal letters and emails from Belo to Clark and Julian regarding status of My Family Member;
* personal emails and letter to Julian from Ms. Virginia Griffis – this is professionally unethical and constitutes bias;
* Belo continued to be copied on emailslIetters after her resignation as guardian in June 2013;
* Ms. Griffis being the attorney for all three guardians;
* allowing some family members visitation and travel privileges with My Family Member
(violation of court order) and restricting other family members from doing so.
* Abusive stay away court orders were issued at the request of Marilyn Belo without due
process or evidentiary hearing, and the only person that was threatened with suspension of all visitation was me and my children.
* Preiss sent a letter to Memory Lane (November 2013) restricting ONLY me from seeing my mom, and did not see my mother until Christmas Day.
This affidavit is based on personal knowledge, court documentation, letters and emails from 20 I 0 to current date.
BEFORE ME, a notary public in Dade-Miami Florida

Theresa Lyles, signature

I would like to thank Ms. Lyles personally for sharing her story on this blog, the affidavit being published with her permission.  It is very, very difficult to get these probate victims to share their horror stories publicly, even if I offer to publish anonymously.  Theresa deserves our kudos today.  Her story is also well documented and the affidavit she prepared is an excellent enumeration of the stripping away of the human and civil rights and liberties of the elderly and concerned family members who should have been a part of all of this.

Thank you so much Theresa for all your brave work. You are a heroine to others.


A change in the right direction for NSA–follow the law

From an Atlantic article wherein a NSA admitted that they had provided “cute” or “aggressive” interpretations of the law to wrongfully expand their spying abiltites:

If the NSA can admit that what they did was wrong (spying on everyone without a court order or only rubber stamped court orders) this will be a step in the right direction.

The courts are also there to funnel the efforts of agencies so that American taxpayers are not spending too much for spying efforts.  Qui Tam action, anyone?

For those of you Pro-Se’ers out there, a great decision from Florida helping a pro se woman denied guardianship

This poor woman was denied guardianship, it was scheduled on a day she could not attend court, then she started filing a flury of pleadings to present her side of the case.

The probate judge responded by barring her from coming to court and filing pleadings!

As most of you know from this blog, it is my position that pro se people are citizens that actually own and pay for the court system, so such rulings are an unconstitutional insult and an Abuse of Power.

Fortunately, the court of appeals turned one of her “writes” into a Notice of Appeal and then reversed that judge.  They acknowldeged there are far too few lawyers for low and middle class citizens to present their cases, esp. in probate.  While they think solving the problem is a $100 per year increase in bar dues to fund legal aide, it is the experience of this blog that is like throwing a handful of grain in front of an elephant.

Many courtrooms and judges are experiencing severe troubles with fraud on the court and troubles following the law to arrive at just results.  Simply put, more attorneys have to run blogs and speak out to help the public and the court system, and in addition, sign up and serve on probate cases pro bono or for low cost.

JoAnne Dension

From Ken Ditkowsky — US Judges see “EPIDEMIC” of prosecutorial misconduct in state convictions

Subject: from “me”
From this story:
A 2010 report by the Northern California Innocence Project cited 707 cases in which state courts found prosecutorial misconduct over 11 years. Only six of the prosecutors were disciplined, and the courts upheld 80% of the convictions in spite of the improprieties, the study found.
Let’s hear it for Project Innocence which has the guts to bring the truth to print. Those are shameful statistics indeed
Judge Alex Kozinski, seen in 2009, warned that a pattern of prosecutorial misconduct in California courts will continue “because they have state judges who are willing to look the other way.” (Gina Ferazzi / Los Angeles Times)

From Atty Barbara Stone and Live Leak–the bribing of US judges is a serious crime and RICO

This article gives the theory, examples of cases against courts and judges, and how to plead a case in a corrupt court system.

There are plenty of case law examples and citations to get any plaintiff going that has experienced severe fraud and corruption in court.  From the article:


* “The American legal system has been corrupted almost beyond recognition…”

Chief Judge, US Court of Appeals, 5th Circuit, Edith Jones, speaking before the Federalist Society of Harvard Law School (February 2003)

Civil RICO–From the Congressional Records–RICO for probate actions, it is possible?

Speaker: Mr. CONYERS


The SPEAKER pro tempore (Mr. Espy). Under a previous order of the House, the gentleman from Michigan [Mr. Conyers] is recognized for 5 minutes.
Mr. CONYERS. Mr. Speaker, the Subcommittee on Criminal Justice, which I am privileged to Chair, has been carefully looking into calls for Civil RICO reform by various segments of the business community, chiefly the securities and banking industries and the accounting profession. I rise to discuss the development and rationale behind the current untenable position of the Department of Justice in this most important debate.
On September 30, 1985, Phillip D. Brady, acting Assistant Attorney General, of the Department informed me by letter that a prior criminal conviction requirement would not be “the best approach to limiting the scope of Civil RICO.”
On July 22, 1986, Assistant Attorney John R. Bolton, of the Department informed by letter the Honorable Thomas P. O’Neill, Jr., Speaker, House of Representatives, that a prior criminal conviction requirement “would best respond to the increasingly troublesome issues that civil RICO” has raised.
What accounts for the dramatic turn around in the official position of the Department?
No new facts came to light between September and July, as these remarks will demonstrate.
No new policy considerations were identified between September and July, as these remarks will demonstrate.
The best explanation lies in a change of personalities — the substitution at the position of the Deputy Attorney General in the Department for J.D. Lowell Jensen, a widely experienced Federal and State prosecutor, of Arnold I. Burns, a prominent New York corporations and securities lawyer.
What is the significance of these conflicting recommendations?
In 1970, we enacted the Organized Crime Control Act, title IX of which is known as the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. § § 1961-68 [RICO]. The act grew out of hearings held by the late Senator John L. McClellan, who was, along with Senator Roman L. Hruska, and Congressman Richard L. Poff, now a justice of the Virginia Supreme Court, principal sponsors of the 1970 legislation. The McClellan committee’s hearings in the Senate demonstrated beyond serious argument that existing Federal and State law was inadequate in dealing with the illicit activities of the Mafia, paticularly as it had corrupted or taken over legitimate businesses, unions, and units of State and local government.
In light of those hearings, the President’s Crime Commission, in 1967 recommended that antitrust-typecivil remedies be adapted to the activities of the underworld. Similarly, the American Bar Association, after careful study, called for the authorization of treble-damage relief for private parties suing underRICO. The National Chamber of Commerce and the Judicial Conference of the United States also voiced support for RICO. The President, too, endorsed the concept of private treble-damage actions. For these reasons, the 1970 act included provisions, not only for Government criminal and civil actions, but also private claims for treble damages for victims of specified conduct — termed predicate offenses — involving violence, the provision of illegal goods and services, governmental and union corruption and, last but not least, commercial and other forms of criminal fraud.
After vigorous debate, we specifically decided not to limit the 1970 act to the activities of organized crime figures. The inadequacies of Federal and State law identified in the study of Mafia prosecutions existed in all cases involving sophisticated forms of criminal behavior. Then-Congressman Poff observed:
[E]very effort … [has been] made to produce a strong and effective tool with which to combat organized crime — and at the same time deal fairly with all who might be affected … [by the] legislation — whether part of the crime syndicate or not. (116 Cong. Rec. 25,204 (1970).)
Since 1970, 27 States have enacted similar legislation; it is pending in another half dozen legislatures.
The Department of Justice has now recommended to us, however, that private civil RICO suits be circumscribed by the unprecedented device of a prior criminal conviction limitation; that is, before aperson actually injured in his business or property by a violation of RICO could civilly sue for treble damages, he would have to show that the defendant had already been prosecuted and convicted criminally of either RICO or at least two of its predicate offenses. I note, too, that provisions in bills introduced by our distinguished colleagues Congressman Frederick Boucher (H.R. 2983) and Senator Howard Metzenbaum (S. 1523), would similarly make the recovery of treble damages under RICOsubject to the showing of a prior criminal conviction on the part of the defendant.
These remarks consider and reject as profoundly unwise these legislative recommendations.
The Supreme Court in SEDIMA S.P.R.L. v. IMREX CO. INC. (473 U.S. 479, 490 n.9 (1985)) aptly summarized the crucial objections to the criminal conviction limitation:
It arbitrarily restricts the availability of private actions, for law breakers are often not apprehended and convicted. Even if a conviction has been obtained, it is unlikely that a private plaintiff will be able to recover for all of the acts constituting an extensive “pattern”, or that multiple victims will all be able to obtain redress. This is because criminal convictions are often limited to a small portion of the actual or possible charges. The … [limitation] would also create peculiar incentives for plea-bargaining to non-predicate-act offenses so as to ensure immunity from a later civil suit. If nothing else, a criminal defendant might plead to a tiny fraction of counts, so as to limit future civil liability. In addition, the dependence of potential civil litigants on the initiation and success of a criminal prosecution could lead to unhealthy private pressures on prosecutors and to self-serving trial testimony, or at least accusations thereof. Problems would also arise if some or all of the convictions were reversed on appeal. Finally, the compelled wait for the completion of criminal proceedings would result in pursuit of stale claims, complex statute of limitations problems, or the wasteful splitting of actions, with resultant claim and issue preclusion complications.
It is important for the development of sound legal policy, however, to review in detail the justifications offered by the Department for its new recommendations and to set out why they should be rejected. It will follow, too, that the similar recommendations contained in H.R. 2983 and S. 1523 ought to be rejected.
Assistant Attorney General John R. Bolton submitted on July 22, 1986, a proposed bill to the Senate and the House to amend section 1964(c) of title 18, United States Code — the provision in the Racketeer Influenced and Corrupt Organizations Act [RICO],which permits Federal treble damage suits for injuries caused by RICO violations. The Department’s recommendations are contained in S. 635 in this Congress. The text of Mr. Bolton’s letter follows these remarks. The proposed legislation would amendRICO to require proof of a prior criminal conviction as an essential element of a private civil RICOsuit for treble damages. Mr. Bolton suggests that this approach will best respond to the “troublesome issues” that civil RICO litigation has raised over the past several years.
Mr. Bolton is profoundly wrong. While reform may be needed of aspects of civil RICO litigation, Mr. Bolton’s proposal is a remedy that far exceeds in scope any demonstrated abuse. Those who suggest that civil RICO litigation reflects abuse have the burden of proving that:
First, a substantial number of abusive suits are being filed.
Second, existing safeguards against such suits are not adequate to remedy them.
Third, new safeguards against such suits that are adequate cannot be designed, and
Fourth, the detriment from these suits outweighs the benefit from legitimate suits.
None of these burdens has been met. (See Goldsmith, “Civil RICO Abuse: The allegations in Context,” 1968 Brigham Young University Law Rev. 55, 103 (“Upon review *** RICO abuse is not a serious problem for our legal system so long as counsel and courts appreciate the utility of existing remedial procedures. Accordingly *** Congress *** should recognize that abuse arguments are more likely motivated by hostility to the RICO remedy”).)
Mr. Bolton’s recommendations would apply to all private civil RICO litigations, not just that which may be “troublesome.” A prior criminal conviction requirement would, in effect, eliminate virtually all private claims for relief under civil RICO. It would deny to all deserving plaintiffs — as well as those who might abuse the statute — their most effective remedy. As such, it should be rejected.
ACivil RICO does not discriminate on the basis of ethnic or social position; anyone who engages in the elements of criminal fraud can and should be sued under section 1964(c):
First, private RICO suits have not achieved their intended purpose as supplements to the federal government’s criminal enforcement efforts against organized crime … Fewer than ten percent of privatecivil RICO actions have been based on what is ordinarily considered to be organized crime activity. Instead, the vast majority of actions has arisen out of commonplace commercial transactions allegedly involving fraud on the part of businesses and individuals that have no connection to organized crime.
Mr. Bolton’s assertion that few private RICO actions are based on “what is ordinarily considered to be organized crime” has about it a touch of ethnic and class bias; it also displays a lack of understanding of “organized crime.” No person’s name need end in a vowel or his collar be blue to violate RICO. As Justice White pointed out in the Supreme Court’s Sedima decision, “(L)egitimate’ *** enterprises *** enjoy neither inherent incapacity for criminal activity nor immunity from its consequences” (473 U.S. at 499).
During the RICO enactment debates, Congressman Poff responded to a query concerning the lack of references in RICO to organized crime by stating:
The gentleman [Congressman Mikva] inquired rhetorically as to why no effort was made to define organized crime in this bill. It is true that there is no organized crime definition in many parts of the bill. This is, in part, because it is probably impossible precisely and definitively to define organized crime. But if it were possible, I ask my friend, would he not be the first to object to such a system? (116 Cong. Rec. 35,204 (1970)).
Dishonest corporate officials and securities dealers are just as capable of larcenous conduct as Mr. Bolton’s “mobsters,” and their victims are just as deserving of relief under civil RICO. Victims of such crime rightly care little that their life savings are stolen by mobsters wearing black shirts and white ties or by accountants while dressed in Brooks Bros. suits and white collars. RICO was consciously written to apply equally to anyone who violated it.
No one ought to deny that major corporations in fact engage in illegal practices, including fraud. Asurvey of 1,043 major corporations between 1970 and 1980 indicated that 117 had significant convictions or consent decrees for 98 antitrust violations; 28 cases of kickbacks, bribery, or illegal rebates; 21 instances of illegal political contributions; 11 cases of fraud; and 5 cases of tax evasion. (Ross “How Lawless Are Big Companies” Fortune, Dec. 1, 1980, at 57.)
Commercial fraud is a serious national problem, one that costs businesses and consumers billions of dollars every year. (United States Chamber of Commerce, “White Collar Crime: Everybody’s Loss” (1974)). All too often, it is a “commonplace commercial transaction,” and combating it is one of the most important uses for civil RICO.
Writing in 1967, the President’s Crime Commission, the studies of which lead to RICO, observed:
[W]hite-collar crime, is now commonly used to designate those occupational crimes committed in the course of their work by persons of high status and social repute *** [who] are only rarely dealt with through the full level of criminal sanctions *** .
During the last few centuries economic life has become vastly more complex. Individual families or groups of families are not self-sufficient; they rely for the basic necessities of life on thousands or even millions of different people, each with a specialized function, many of whom live hundreds or thousands of miles away. * * * * *
Serious erosion of morals accompanies [the] violation[s] of [white collar offenders]. [Those who so] flout the law set an example for other business and influence individuals, particularly young people, to commit other kinds of crime on the ground that everybody is taking what he can get. (The Challenge of Crime in a Free Society 47-48 (1967))
The Commission also commented:
[F]raud is *** [an] offense whose impact is not well conveyed by police statistics. *** Fraud is especially vicious when it attacks, as it so often does, the poor or those who live on the margin of poverty. Expensive nostrums for incurable diseases, home improvements frauds, frauds involving the sale or repair of cars and other criminal schemes create losses which are not only sizable in gross but are also significant and possibly devastating for individual victims” (ID. at 33-34.)
See also FURMAN v. CIRRITO, 741 F. 2d. 524, 528-29 (2nd Cir. 1984) (Pratt, J.):
Despite the clarity of congress’s language [in drafting RICO] defendants argue that since RICO‘s primary purpose is to eradicate organized crime, it is [not] directed *** against businessmen engaged in garden variety fraud *** . While RICO‘s primary focus may have been on organized crime, when considering the statute congress also recognized that fraud is a persuasive problem throughout our society *** which causes billions of dollars in loss each year *** Congress further acknowledged that existing state and federal law was not capable of dealing with this problem. * * * * *
When congress provided severe penalties, both civil and criminal, for conducting the affair of an“enterprise” through a “pattern of racketeering activity,” it provided no exceptions for businessmen, for white collar workers, for bankers, or for stockbrokers. If the conduct of such people can sometime fairly be characterized as “garden variety fraud,” we can only conclude that by the RICO statute congress has provided an additional means to weed that “garden” of its fraud.
B. Stories of Civil RICO abuse are exaggerated; existing safeguards can eliminate specious suits; more safeguards can be implemented. A few instances of abuse do not justify effectively eliminating the claim for relief.
*** unanticipated applications of the statue have occurred in cases involving claims of sexual harassment, disputes over the leadershp of a synagogue, and routine divorce controversies.
Mr. Bolton trots out exceptional horror stories about the misuse of civil RICO, without telling us that such specious claims are usually disposed of at the pleadings stage. In fact, Department of Justice studies show that 61 percent of all RICO cases prior to July 1985 were decided in favor of defendants. (Testimony of Assistant Attorney General Stephen S. Trott, Oversight on Civil RICO, Hearing before the Senate Judiciary Committee, 99th Cong. 1st Sess. at 127 (1985) (hereinafter Trott)). If anything, these data show, not only that existing remedies for abuse are working, but also that district courts are manifesting a hostility to civil RICO litigation not warranted by its text, legislative history, or purpose. Particular classes of claims, moreover, could be excluded from RICO without excising other claims that are more substantial. Each of Mr. Bolton’s “troublesome” categories could be excepted from the act’s jurisdiction without impact on the general operation of the statute. How then may Bolton’s general attack on RICO be justified, unless he is more concerned about giving victims remedies, which might curtail corporate abuse, than curtailing plaintiffs, who might abuse civil RICO?
Plaintiffs may, of course, seek to abuse civil RICO, as they may seek to abuse any statute, including the anti-trust or securities statutes, but there are mechanisms already available to curtail such abuse — in the Model Code of Professional Responsibility, the Federal Rules of Civil Procedure, and in the tort law claim of abuse of process. The solution to meritless litigation lies, therefore, not in imposing additional requirements for establishing plaintiff’s prima facie case, but in using existing rules and procedures to discourage abusive litigation. If the existing rules are inadequate, the appropriate solution is to reform the remedies, not redraft RICO, because the problem of meritless actions — whatever its scope — extend beyond RICO to all civil actions. (See HOOVER v. RONWIN 104 S.Ct. 1989, 2012 (1984) (Stevens, J. dissenting) (“Frivolous cases should be treated as exactly that, and not as occasions for fundamental shifts in legal doctrine. Our legal system has developed procedures for speedily disposing of unfound claims; if they are inadequate to protect [individuals] from vexatious litigation, then there is something wrong with those procedures, not with the law.”)) Mr. Bolton, however, would eliminate civil RICO abuse through a prior criminal conviction requirement. Many argue that personal injury lawyers file specious claims, but no one seriously suggests that a defendant should first be convicted of murder before anyone could sue him for wrongful death. Perspective is called for. Our society knows no mark of shame more stigmatizing than that of Cain, yet homicide may be both murder and wrongful death. (HALBERSTAM v. WELCH, 705 F2d 472 (D.C. Cir. 1983)). Traditionally, civil recovery for wrongful death having criminal characteristics may be obtained without showing a prior criminal conviction or meeting an increased burden of proof. (See, e.g., LOUISVILLE EVANSVILLE AND ST. LOUIS R.R. v. CLARKE, 152 U.S. 230, 235-42 (1984) (“wholly civil in character”). See WATSON v. ADAMS, 187 Ala. 490, 494, 65 So. 528, 533 (1914) (wrongful death) (“Great as the love of money may be in some human beings, it cannot be presumed that to be held liable for damages is, to the ordinary man, the equivalent of the impending, unless diverted, exaction of his freedom or his life *** “)). Similarly, murder may be an issue in the imposition of a constructive trust or the voiding of bequest, yet a conviction is not required, and the homicide may be shown by a preponderance of the evidence. See, e.g., SMALL v. ROCKFELD, 66 N.J. 231, 245, 330 A.2d 335, 343 (1974) (no conviction required); BURNS v. UNITED STATES, 200 F.2d 106, 107 (4th Cir. 1952) (acquittal in criminal case not defense in civil case where murder at issue); Uniform Probate Code 2-803(e) (1983) (conviction for murder not required and killing may be shown by preponderance of the evidence); Restatement of the Law of Restitution § 187, comment f. (1937)) No sound reason exists for circumscribing RICO in afashion that no other claims for relief in Federal law are similarly circumscribed, including anti-trust and securities.
C. Civil RICO‘s use against business fraud is entirely consistent with the language of the statute and with congressional intent.
[S]ection 1964(c) *** has lead to the unnecessary and unwise federalization of an area of the law that is best reserved to the states *** . We do not believe that, when it enacted RICO, Congress thought it necessary to create a general federal remedy for fraud, or that it intended to do so.
Mr. Bolton makes a completely unsubstantiated claim that Congress did not intend RICO to be ageneral federal fraud remedy. He should read the statute. “The language of *** [RICO] *** [is] the most reliable evidence of [congressional] intent *** (UNITED STATES v. TURKETTE, 452 U.S. 576,593 (1981)). Congress included mail fraud, wire fraud, travel fraud, and bankruptcy fraud in its list ofRICO‘s predicate offenses. Then under section 1964(c), it granted a civil claim for relief to “any person injured in his business or property *** .” through the commission of those offenses in violation ofRICO. The statement of findings and purposes of Pub. L. 91-452 specifically stated that sophisticated forms of “crime in the United States *** annually drain [ *** ] billions of dollars from America’s economy by *** the illegal use of force, fraud, and corruption *** .” (84 Stat. 922-236 (1970)).
Mr. Bolton should also have looked at the legislative history of the bill. Some of the Congressmen, who voted against RICO, shared his objections to it — that its application was not limited to “organized crime,” and that it extended federal jurisdiction to commercial fraud cognizable under State law. Congressman Mikva, for example, pointed out “[w]hat we have done in one fell swoop *** is incorporated as a part of the Federal law all of the offenses which heretofore have traditionally been treated as under State and local jurisdictions.” (116 Cong. Rec. 35,205 (1970)). Mr. Bolton’s federalism concerns would not ring false if he were not also one of the principal forces behind Federal tort reform and similar national efforts to circumscribe local products liability litigation. He is consistent in his principles only to the degree that he always wishes to undercut plaintiff’s rights to recover for their injuries with the best remedy and forum possible. It is abundantly clear that Congress fully intended, after specific debate, to have RICO apply beyond any limiting concept like “organized crime” or “racketeering” and, over specific objections raising issues of Federal-State relations and crowded court dockets, Congress deliberately extended RICO to the general field of commercial and other fraud.
D. Civil RICO is an important safeguard for the general public; other criminal and civil sanctions are often inadequate.
*** There is no need for a general federal fraud remedy. Persons who engage in serious fraud can be, and frequently are, prosecuted for criminal offenses under both federal and state statutes. In addition, federal laws and judicial decisions afford civil redress for specific types of fraudulent conduct, such as securities fraud, and state statutes and common law principles permit civil recovery for those species of fraud not covered by federal law. We know of no shortcomings in these various provisions such as would warrant adoption of a broad federal remedy for fraud.
Notwithstanding Mr. Bolton, a dire need exists for a general Federal fraud remedy. Congress enactedcivil RICO knowing full well that traditional remedies were inadequate. (See 84 Stat. 923 (1970) (“the sanctions and remedies available *** are unnecessarily limited in scope and impact”)).
For example, bank fraud, particularly by insiders, is deeply disturbing. In the 1980-81 period, the failure of 105 banks and savings and loans cost $1 billion. Roughly one-half of the bank failures and one-quarter of the savings and loan collapses had as a major contributing factor criminal activities by insiders, few of whom, according to the findings of a study of the Subcommittee on Commerce, Consumer and Monetary Affairs, chaired by our distinguished colleague, Doug Barnard, were adequately sanctioned, criminally or civilly. (See Federal Response to Criminal Misconduct and Insider Abuse in the Nations’ Financial Institutions, H.R. Rep. No. 1137 98th Cong. 2d Sess. 5 (1984).) The Barnard committee observed:
Despite enormous losses, neither the banking nor the criminal justice systems impose effective sanctions for punishment to deter white-collar bank fraud. The few insiders who are singled out for civilsanctions by the banking agencies are usually either fined de minimis amounts or simply urged to resign. The few who are criminally prosecuted usually serve little, if any, time in prison for thefts that often cost millions of dollars.
Most banks, in fact, do not have the financial resources or the expertise to protect themselves from sophisticated schemes to defraud, according to recent testimony of the FDIC before the Senate Judiciary Committee. (Testimony of Daniel W. Persinger, Deputy General Counsel, Federal Deposit Insurance Corporation, Oversight on Civil RICO Suits, Hearings before the Senate Judiciary Committee, 99th Cong. 1st Sess. at 216 (1985)). Ninety-seven percent of the federally insured banks have assets of less than $500 million; 84 percent less than $100 million; 66 percent less than $50 million.
Ultimately, many of these costs of fraud are passed on to the rest of us. Insurance fraud, for example, annually costs $11 billion, and since the typical insurance company must generate $1.25 in premiums for every dollar it pays out, the bill that the Nation must meet amounts to $13.75 billion. (N.Y. Times, July 6, 1980, at 17, col. 1) Indeed, the “insurance crisis” that is leading legislators to rewrite our liability laws to curtail litigation abuse might be better dealt with by enforcing vigorously our laws against fraud. (See generally N.Y. Times, March 2, 1986, at 20, col. 1 (industry said to lose $5.5 billion or make $1.7 billion); The Explosion in Liability Lawsuits Is Nothing But a Myth, Bus. Wk., April 21, 1986, at 24, col. 1)
Leaving aside the question of Mr. Bolton’s “serious” fraud (as opposed to what?), it is clear that white-collar criminals are rarely prosecuted, and seldom convicted, for a plethora of reasons completely unrelated to their guilt or innocence: lack of prosecutorial resources, plea-bargaining, defendants turning states evidence, and legal technicalities. J. Conklin, Illegal But Not Criminal: Business Crime in America 129 (1977) rightly concludes:
[T]he criminal justice system treats business offenders with leniency. Prosecution is uncommon, conviction is rare, and harsh sentences almost non existent. At most, a businessman or corporation is fined; few individuals are imprisoned and those who are serve very short sentences. Many reasons exist for this leniency. The wealth and prestige of businessmen, their influence over the media, the trend toward more lenient punishment for all offenders, the complexity and invisibility of many business crimes, the existence of regulatory agencies and inspectors who seek compliance with the law rather than punishment of violators all help explain why the criminal justice system rarely deals harshly with businessmen. This failure to punish business offenders may encourage feelings of mistrust toward community morality, and general social disorganization in the general population. Discriminatory justice may also provide lower class and working class individuals with justifications for their own violation of the law, and it may provide political radicals with a desire to replace a corrupt system in which equal justice is little more than a spoken idea.
Indeed, skillfully plea bargaining can easily circumvent the treble damage provision entirely. Ivan Boesky, the most egregious insider trader in history, pled guilty not to insider trading — a securities law predicate offense under RICO — but to conspiracy to file a false statement with the SEC, 18 U.S.C. § § 371, 1001 which is not a RICO predicate offense.
Should Mr. Bolton’s proposal — or Congressman Boucher’s — or Senator Metzenbaum’s — pass, avariety of factors could protect an otherwise guilty defendant from a treble damage civil RICO claim, and often leave deserving plaintiffs with remedies that allow recovery only for actual damages. That way, at worst, the defrauder would have to return what he had taken. Compared to the deterrent value and adequate compensation features of the treble damages provision of civil RICO, current law — without RICO — would in fact have serious shortcomings.
E. Civil RICO does not undermine other remedies; it buttresses them.
*** The increasing use of section 1964(c) as a federal fraud remedy threatens to undermine carefully crafted and well established federal statutory schemes that have been developed to regulate the securities, commodities, banking, accounting, and savings and loan industries.
In arguing that section 1964(c) undercuts the Securities Act of 1933, the Securities Exchange Act of 1934, and other Federal statutes, Mr. Bolton, as in the case of others, who should know better, simply misreads the law. For an impression is apparently widespread, particularly among the securities industry, that RICO simply “overlaps” all securities fraud. Justice Marshall in dissent in Sedima expressed a similar concern (473 U.S. at 505) (“virtually eliminates decades of legislative and judicial developments of private civil remedies under the Federal securities laws”). Nothing could be further from the truth. RICO says “offenses” involving “fraud in the sale of securities” “punishable under any law of the United States.” 18 U.S.C. 1961 (1)(D) (1982). “Offenses” means criminal offenses. (Black’s Law Dictionary at 975 (5th ed. 1979). See TRANE v. O’CONNOR SECURITIES, 701 F.2d 26, 29 (2d Cir. 1983) (“obviously refers to criminal punishment”); DAN RIVER, INC. v. ICAHN, 701 F.2d 278, 291 (5th Cir. 1983) (“criminal intent is *** necessary in either mail fraud or securities fraud [under RICO.]”)). Accordingly, only the criminal fraud provisions of the securities acts fall within RICO. (See, e.g., Securities Act of 1933, 15 U.S.C. § 77x (1982) (“willfully”); Securities Exchange Act of 1934, 15 U.S.C. § 78ff (1982) (“willfully”)). Merely negligent conduct or a transaction that only operates as a fraud does not fall within the statute. (See AARON v. SECURITIES AND EXCHANGE COMM., 446 U.S. 681, 701-02 (1980) (intent to defraud rather than negligence in 10(b) (’34) or 17a(1) (’33), but not untrue statements or admission or transactions that operate as a fraud 17(a)(2) or (3) (’33))). Such anoverlap between statutes is neither “unusual nor unfortunate.” (S.E.C. v. NATIONAL SECURITIES, INC., 393 U.S. 453, 468 (1969)). Indeed, the securities acts themselves envision it. (See, e.g., Section 28(a) of the Securities and Exchange Act of 1934, 15 U.S.C. 78 bb(a) (1982) (“rights and remedies” “in addition” to “all other” that might exist)). RICO, too, recognizes the overlap. (84 Stat. 947 (1970) (“Nothing in this title shall supersede any provision of Federal, State or other law imposing criminal penalties or affording civil remedies in addition to those provided for in this title”)).
That RICO supplements our basic securities laws, more over, is hardly lamentable. The funding of the Securities and Exchange Commission, for example, has increased since 1979, but its staffing has decreased, and its pending investigations are down. Yet the number of shares traded on the New York Stock Exchange has shot up 300 percent 1977; the number of first time registrants has increased by 260 percent. Even among legitimate brokerage firms, the incentive structure for commissions encourages a fraud known as “churning,” trading stock without regard for investment objectives. Similarly, the futures industry in the United States has grown tremendously in recent years. The 139.9 million futures contracts traded in 1983 represents a level of trading activity 15 times greater than that reached on 1968. The value of contracts traded exceeds $5 trillion a year. Nevertheless, the resources of the Commodities Futures Trading Commission have remained relatively constant. It has been suggested, that the industry is a scandal waiting to happen, for the Commission “is thoroughly out-gunned in the ongoing battle against commodity fraud.” Senate Comm. on Governmental Affairs, Commodity Investment Fraud, S. Rep. No. 97-495, 97th cong., 2d Sess. 10 (1983).
In addition, accounting firms, once thought to play the role of outside watchdogs, are under heavy competitive pressure to go along with questionable annual reports, and they are increasingly losing their independence, since they also offer management consulting advice. (See, All Eyes on Accountants, Time, April 21, 1986 p. 61.) “After a spectacular string of corporate failures and financial scandals in recent years, the industry that is supposed to audit company books and sniff out chicanery” (Id.) is itself coming under close scrutiny. Since 1980, the Big Eight have had to pay more than $180 million to settle liability suits. No wonder that the accounting profession is a major contributor to the political campaigns of those in the forefront of the effort to exonerate RICO. (See, Rolling Back RICO, National Journal, Sept. 6, 1986 p. 2114-2115.) Indeed, Theodore C. Barreaux, vice president of the American Institute of Certified Public Accountants, attributes the Department of Justice’s switch to aseries of meetings between accounting institute lawyers and Department officials. (Id. at 2115.)
Joseph Connor, chairman of Price Waterhouse acknowledges: “We’ve failed in our public duty. We should sound the drum when a company is on the brink of disaster.” (Time, supra note 16, at 61.) Spectacular failures include the collapse of E.S.M. Government Securities Inc., which fell after falsified books that concealed millions of dollars of losses from investors were made possible by a bribed accounting firm auditor. Investors with accounts at the firm, including as many as a dozen municipalities, lost as much as $315 million. The collapse of E.S.M. also led to the insolvency of Home State Savings Bank in Ohio and the shutdown of 69 privately insured thrift institutions. The accounting firm of Grant Thornton recently reached a $22.5 million settlement with the American Savings and Loan Association, which lost $55.3 million; it also reached a $50 million settlement with 17 municipal government, which sued under RICO. (New York Times, Sept. 17, 1986, p. 48 col. 6). More than a little historical irony is present in Mr. Bolton’s defense of the securities statutes. Like RICO, when the 1933 act was passed, it, too, was attacked as antibusiness. (See, J. Seligman, “The Transformation of Wall Street” 79 (1983), quoting then-Prof. Felix Frankfurter: “The leading financial law firms who have been systematically carrying on a campaign against [the Securities Act of 1933] have been seeking — now that they and their financial clients have come out of their storm cellar of fear — not to improve but to chloroform the act. They evidently assume that the public is unaware of the sources of the issues that represent the boldest abuses of fiduciary responsibility.”) History repeats itself.
F. Civil RICO does not threaten legitimate businesses; it works against businesses who engage in criminal fraud and protects law abiding businesses from illegal acts by others.
Equally serious is the threat of civil RICO liability to legitimate businesses engaged in purely commercial transactions. Section 1964(c) permits virtually any legitimate business enterprise to be charged with “racketeering” and threatened with a judgement for treble damages and attorneys’ fees, simply on the basis of an ordinary commercial dispute. Civil RICO skews dispute resolution in commercial cases, extorts settlements and increases legal fees, which cost ultimately will be passed on the purchasers of the goods or services.
Mr. Bolton speaks of civil RICO‘s “threat” to “legitimate” business. To refer to a business as “legitimate” without inquiring into the truth of charges brought against it, begs the question (SEE MYERS v. BETHLEHEM SHIPBUILDING CORP., 303 U.S. 41, 51-52 (1938) (Brandeis, J.) (“Lawsuits *** often prove to [be] groundless but no way has been discovered for relieving a defendant from the necessity of a trial to establish the fact.”)) Similarly, the second circuit suggested that civil RICO suits against “respected and legitimate enterprises” where”extraordinary, if not outrageous.” (SEDIMA S.D.R.L. v. IMREX CO., INC., 741 F.2d 482, 495-96 (2nd Cir. 1984), rev’d, 473 U.S. 479 (1985)). Included among the cited legitimate enterprises was E.F. Hutton. (But see “Why the E.F. Hutton Scandal May Be Far From Over,” (Hutton pleads guilty to 2,000 counts of mail fraud in a multi-million dollar bank scam); HAROCO INC. v. AMERICAN NATIONAL BANK AND TRUST CO., 747 F.2d 384, 395 n.14 (7th Cir. 1984), aff’d, 473 U.S. 606 (1985) (“[T]he White-collar crime alleged in some RICO complaints against ‘legitimate’ business is in some ways at least as disturbing. *** “)
Contrary to Mr. Bolton’s statement, civil RICO does not, however, apply to “ordinary commercial disputes,” but rather to criminal fraud. While the scope of mail and wire fraud statutes is wide, no honest person need fear a civil suit under RICO based on those offenses, for both require fraudulent intent and good faith is a complete defense. (DURLAND v. UNITED STATES, 161 U.S. 306,314 (1986)) UNITED STATES v. MARTIN-IRIGONA, 684 f. 2d. 485, 492-493 (7th Cir. 1982); DAN RIVER INC. v. ICAHN, 701 F. 2d 278, 289-91 (4th Cir. 1983)). RICO does not provide for constructive fraud, negligence or strict liability.
If, on the other hand, businessmen engage in fraud in the course of “purely commercial transactions,”civil RICO can and should be used against them. Section 1964(c) does permit any “legitimate” business enterprise to be charged with “racketeering,” but an honest businessman need not settle at the sight of a civil RICO suit; the plaintiff must still prove his case. The treble damage provisions incivil RICO do not, in short, “extort” settlements, they simply put a plaintiff with a good case in a good position. If our society authorizes the recovery of not only actual damages for deliberate antisocial conduct engaged in for profit, it lets the perpetrator know that if he is caught, he need only return the misappropriated sums. If he is not caught, he may keep his ill-gotten gains, and if he is caught and sued, he knows that he may be able to defeat part of the damage claims or at least compromise it. The balance of economic risk under traditional simple damage recovery provides, therefore, little disincentive to those who engage in such conduct. Indeed, the seventh circuit was closer to the mark when it observed in AMERICAN NATIONAL BANK AND TRUST CO. OF CHICAGO v. HAROCO that “the delays, expense and uncertainties of litigation often compel plaintiffs to settle completely valid claims for a mere fraction of their value. By adding to the settlement value of such valid claims in certain cases clearly involving criminal conduct, RICO may arguably promote more complete satisfaction of plaintiff’s claims without facilitating indefensible windfalls.” (747 f.2d 384, 399 n.16 (7th Cir. 1984, aff’d, 479 U.S. 606 (1985). See generally Block, Nold, and Sidak, The Deterrent Effect of Anti-Trust Enforcement, 89 Journal of Political Economy 429, 440 (1981) (“Neither imprisonment nor monetary penalties pose [ *** ] a credible threat to colluding firms *** [T]he deterrent effect *** [comes] from *** the likelihood of an award of private treble damages”)).
Studies of the antitrust statutes show that most antitrust suits are settled now at close to actual damages. Ironically, it may be necessary to authorize treble damages to assure that deserving victims receive actual damages in the RICO area.
Justice Marshall in Sedima (473 U.S. at 506) also suggests that “a prudent defendant, facing ruinous exposure [under RICO] will decide to settle even a case with no merit.” Accordingly, civil RICO lends itself, he argued, to the very extortive purpose “it was designed to combat.” Justice Marshall cites as authority for this extraordinary proposition the Report of the Ad Hoc Civil RICO Task Force of the ABA Section of Corporations, Banking and Business Law, 69 (1985). The Ad Hoc Task Force, in turn, conducted a survey of 3,200 corporate and litigation lawyers, of whom only 350 responded. Two factors, however, undermine the scientific credibility of the general results of the survey: First, the population questioned was unrepresentative of the bar, and second, the response rate was insufficient to warrant broad generalizations. More to the point here, the survey did not ask each of the respondents a carefully phrased question calling for their opinion or experience with RICO as asettlement weapon. Instead, the opinion relied upon by Justice Marshall was volunteered by only two of the 350 respondents as grounds for repealing RICO. In fact, it is the experience of a majority of seasoned litigators in the RICO area that adding a RICO claim to a suit does not facilitate settlement; it inhibits it, particularly when a legitimate business is involved. (See A Comprehensive Perspective onCivil and Criminal RICO Legislation and Litigation: A report of the RICO Cases Committee, ABA criminal justice section 121-23 (1985)).
Generally, businesses wrongfully accused of “racketeering” will not settle suits — even those that should be compromised — as long as the racketeer label is the litigation. Indeed, it is difficult to understand how Justice Marshall could believe that a suit with “no merit” faces a defendant with “ruinous exposure.” If the plaintiff’s suit has no merit, his chance of success is zero, and zero multiplied by three — or any number — is still zero. It is doubtful, in short, that responsible corporate or other defendants are paying off strike suits in the RICO — or any other area — at more than their settlement value, no matter what the theory of the complaint is. Neither the racketeer label nor the threat of treble damages will convince prudent managers lightly to surrender scarce resources merely because another files a suit. No matter how colorful it is phrased, the claim that such managers act against their own interests is not credible.
Mr. Bolton’s concern over the costs of civil RICO passed along to consumers is ironic, since every year the American public pays bills for commercial fraud that can only be described in Carl Sagan terms. Just as importantly, Mr. Bolton completely overlooks the fact that civil Rico can provide honest businessmen with a powerful weapon against dishonest competitors. As Senator Hruska pointed out when he introduced one of RICO‘s forerunners, S. 1623:
* * * [T]he bill also creates civil remedies for the honest businessman who has been damaged by unfair competition from the racketeer businessman. Despite the willingness of the courts to apply the Sherman Anti-trust Act to organized crime activities, as a practical matter, the legitimate businessman does not have the adequate civil remedies available under the Act. This bill fills the gap. (115 Cong. Rec. 6993 (1969)).
Most of S. 1623’s provisions were subsequently incorporated in RICO. In fact, many large corporations have used section 1964(c) suits, including IBM, Crocker National Bank, Standard Oil of Indiana, Armco Steel, Pepsi-Cola Bottling Co., Banker’s Trust Co., AETNA Casualty and Surety Co., Allstate Insurance Co., and State Farm Fire and Casualty Co. IBM, for example sued Hitachi Ltd. under RICO for the theft of computer software; the suit was settled for upwards of $200 million. Similarly, the Crocker litigation against Lehman Brothers, Rockwell International, and Singer, Hunter, Levine and Sussman of New York, a law firm, involved an alleged $225 million computer leasing fraud; it was settled for $65 million.
G. Civil RICO suits are only a minute fraction of the Federal civil case load; considerations of judicial economy do not justify the effective elimination of the section 1964(c) claim for relief.
It is no exaggeration to say that there has been an explosion of private civil RICO lawsuits over the past several years, nor does it seem unreasonable to predict a continuation of this trend *** .
Mr. Bolton makes dire predictions about an explosion of new Federal litigation, as if litigation of any proportion would be unjustified if the victims could establish their allegations. Nevertheless, the “explosion” in private civil RICO suits in recent years hardly justifies a rhetoric of black powder. In fact, less than 500 were brought between 1970 and 1985. (Trott at 126, 141 (“weight of these burdens may not be as great as is claimed”)). Even if it were to increase to 500 suits a year and then be multiplied tenfold, section 1964(c) claims would still constitute only 2 percent of all Federal cases. (Statement of the National Association of Attorneys General and National District Attorneys Association, Oversight on Civil RICO, Hearings before the Senate Judiciary Committee, 94th Cong. 1st Sess. at 425 (1985)). Approximately 275,000 civil cases are filed each year. “Annual Report of the Director of the Administrative Office of the United States Courts” 11 (1985). 118,000 of the civil cases involve the United States as a plaintiff or defendant; private litigation embraces approximately 160,000 filings, of which 60 percent is Federal question and 40 percent is diversity litigation. Id. at 11. The principal areas of litigation are recovery and overpayments and enforcement of judgments (47,000), prisoner petitions (30,000), Social Security (25,000), civil rights (20,000), and labor (11,000). Id. at A-12-13. Antitrust includes 959 civil filings, id. at A-12, and 47 criminal cases. Id. at A-47. Securities, commodities and exchange-related civil filing make up 3,200, id. at A-13, and 13 criminal cases. Id. at A-46. Fraud-related civil filings make up 1,700. Id. at A-12. Accordingly, if most securities and fraud-related cases were also RICO cases, RICO filing would not exceed 5,000; not more than 2 percent of all Federal filings. How many wholly new pieces of litigation, particularly in the fraud area, RICO will draw into the Federal courts cannot be reliably determined. It is doubtful, however, that the number will be relatively high, as most significant commerical litigation is now in the Federal courts under other Federal statutes or diversity jurisdiction. In fact, recent data on Civil RICO filing, presented to the Subcommittee on Criminal Justice, indicates that in 1986, only 1069 cases were filed — not thousands — and 294 were terminated. As such, according to Judge Pamela A. Rymer, “the perceived problem of civil RICO case load is exaggerated * * *.” (2 Civil RICO Report No. 34 at 3 (Feb. 4, 1987)). Mr. Bolton, therefore, grossly exaggerates the “heavy burden” civil RICO cases place on Federal courts. Since almost two-thirds of civil RICO suits could be heard in the Federal courts on other grounds, (Trott at 127) “the practical consideration” of the Federal caseload is not a crucial issue.
H. Civil RICO abuse can be substantially reduced by measures that would not unduly restrict plaintiffs’ access to the courts.
Several legislative approaches to civil RICO reform have been suggested. A common element of each proposal is that each would retain civil RICO‘s private enforcement mechanism, while limiting the circumstances to which it could apply * * *. We have concluded that a requirement for a “prior criminal conviction” as a prerequisite to private civil RICO suits, is the preferable approach. If this approach is adopted, the vast majority of abusive and vexatious civil RICO litigation will be eliminated * * *.
Apparently, Mr. Bolton has not studied the effect a prior criminal conviction remedy would have, not only on the “vast majority of abusive and vexatious private civil RICO suits,” but also on valid claims as well. In the antitrust area, 959 civil actions are filed each year, while only 47 criminal actions are brought. Under securities and related laws, 3,200 civil actions are filed each year, while only 13 criminal actions are brought. “Annual Report of the Director of the Administrative Office of the United States Courts,” A-12, A-47, A-13, A-46 (1985). A prior criminal conviction requirement would effectively eliminate these remedies, just as it would eviscerate private civil RICO. That, in short, is Mr. Bolton’s true objective.
I. Civil RICO applies to all people who violate its criminal provisions.
Private civil RICO has not succeeded in providing an effective weapon against organized crime. Indeed, one of the most significant aspects of civil RICO has been its virtual neglect by those for whose benefit the private remedy was provided — the victims of organized crime. Our proposed amendment would remedy these problems by ensuring that private civil RICO actions would be brought against only convicted criminals, the group that Congress intended to reach.
The key problem with Mr. Bolton’s analysis of section 1964(c) lies in his fundamental misunderstanding of organized crime. Anyone, not just machinegun toting mobsters, can engage in organized crime. including M.B.A. bankers in Brooks Brothers suits, who defraud banks, brokers, however dressed, who churn away their clients’ portfolios, or other fiduciaries, who similarly misuse other peoples money. Wrongly, Mr. Bolton thinks that civil RICO should apply only to the archetype gangsters, not to legitimate businessmen, who act illegally. We specifically considered and rejected Mr. Bolton’s suggested criminal conviction limitation in 1970. Congressman Mikva, for example, in 1970 called to the attention of the House that “[t]here need not be a conviction under any of these laws for it to be racketeering.” (116 Cong. Rec. 35,342 (1970)). It is too late now to suggest that we really intended otherwise. Only a small percentage of suspected criminal activities, moreover, can be investigated thoroughly, and only a fraction of those investigated can be effectively prosecuted. Since white-collar criminals often manage to evade prosecution and conviction, Mr. Bolton’s amendment would deny the victims of white-collar crime one of their most effective remedies. Civil RICO suits should not be brought only against convicted criminals, but also against criminals who plea-bargain, turn states evidence, or get off on a technicality.
Private civil RICO, moreover, has not failed against organized crime. Indeed, it is in danger of becoming a victim of its own success. RICO has merely reached a more monied class of criminals, aclass who apparently is now able to make its voice heard at the highest levels in the Department of Justice. Nevertheless, the best answer to Mr. Bolton’s position is found in the testimony of Assistant Attorney General Trott:
[I]t is true, of course, that the deterrent value of private civil RICO enforcement does not seem very significant when judged in terms of the number of private actions that have been brought against known or suspected members of organized crime. On the other hand, in gauging the overall deterrent value of auxiliary enforcement by private plaintiffs, the deterrence provided by the mere threat of private suits must be added to the deterrence supplied by the suits that are actually filed. Furthermore, as the federal government’s enforcement efforts continue to weaken organized crime and dispel the myth of invulnerability that has long surrounded and protected its members, private plaintiffs may become more willing to pursue RICO‘s attractive civil remedies in organized crime contexts. It should be remembered, too, that civil RICO has significant deterrent potential when used by institutional plaintiffs, such as units of state and local governments, which are not likely to be intimidated at the prospect of suing organized crime members. Finally, civil RICO‘s utility against continuous large-scale criminality not involving traditional organized crime elements should be kept in mind. These considerations suggest that private civil RICO enforcement in area of the organized criminality may have had a greater deterrent impact than is commonly recognized, and that both the threat and the actuality of private enforcement might be expected to produce even greater deterrence in the future. (Trott pp. 140-41.)
J. If fraud is a serious national problem and civil RICO relief should be available to the federal government without a prior criminal conviction requirement, state and local units of government and private citizens should have exactly the same remedy.
*** we recommend that the statute be amended to clarify the federal government’s ability to obtain monetary redress for organized criminal activity that causes injury to the United States. Adoption of this proposal could provide significant benefits to the government, and substantially enhance the deterrent impact of civil RICO.
Paradoxically, no sooner has Mr. Bolton finished arguing for the elimination of civil RICO actions for private parties, including State and local units of government, absent a prior criminal conviction, than he proposes to except the Federal Government from the limitation. Indeed, he makes an excellent case for governmental use of civil RICO: the protection of the public treasury through “the recovery of Federal funds *** fraudulently obtained or misused *** .” Conceding that other existing fraud remedies are inadequate, he quite properly points out that “the possibility of recovering treble damages underRICO might make litigation worthwhile in situations in which the recovery of compensatory damages might not be cost effective, but where important governmental interests should nevertheless be vindicated.” Further, he argues that “the possibility of a treble damage suite by the Government could have a significant deterrent effect on persons contemplating fraudulent acquisition or misuse of Government funds.”
Unfortunately, Mr. Bolton displays a distressing lack of knowledge of how the Federal Government works and how it relates to State and local units of government. First, he seems to assume that the only fraud practiced against the Government is in contract procurement. In fact, many Government programs operate through grant-in-aid or provider reimbursement devices, where the Government, as such, is not injured. Incomprehensively, the language of Mr. Bolton’s proposal would not protect, bycivil RICO suits, these kinds of “Government” programs from fraud. The victims of this kind of fraud will often be, in fact, State and local units of government, which Mr. Bolton’s proposal would not except. In addition, many government programs are implemented through the mechanisms of Government chartered corporations, including the Federal Deposit Insurance Corporation, Federal Saving and Loan Insurance Corporations, the Tennessee Valley Authority, etc. These programs, too, would fall outside of the language of the Bolton proposal. These results are, of course, indefensible, even under Mr. Bolton’s rationale; they could only be the result, therefore, of poor staff work. As such, they call into question his entire proposal.
Second, no rationale can be offered why State and local units of government ought not have precisely the same right to use civil RICO to protect their own programs from fraud. Prosecutions going on in New York City right now by the Federal Government, for example, are using criminal RICO to root out municipal corruption. Not all of the culpable parties, particularly corrupt business people, will be prosecuted; many will be offered immunity to testify against corrupt public officials. Should these equally guilty parties be free of civil responsibility under RICO, too? If it is appropriate for the Federal Government to concern itself with corruption at the State and local level of government — and it is — it can hardly be suggested that the Federal courts, open for criminal suits, ought to be closed for civilsuits on behalf of Government victims. Mr. Bolton has offered no rationale to justify this result. It, too, calls into question Mr. Bolton’s entire proposal. It is hard to understand how Mr. Bolton fails to recognize that civil RICO serves the same laudable purposes in the private sector. For the private citizens’ interest “in an effective effort against organized, systematic illegality” is no less vital than the Federal Government’s or that of State and local units of government. Mr. Bolton believes that the Government should have effective tools to fight fraud. It would be anomalous to deny those same tools to State and local units of government — or to private citizens.
In ancient Egypt, the scales were first used to symbolize impartiality, that balance of Re, the Sun god, in which he weighed ma-at, justice. (J. Nooham Bribes 7 (1984)). That justice was not always evenhanded at the beginning of civilization also may be seen in that it was necessary for Holy Scripture to issue its ancient injunction: “Prosecute the rich not merely the penniless; strong-armed men as well as those who are powerless.” (Job 36:19) The desire of the rich and the strong-armed to put their thumb on the scale of justice remains with us.
Civil RICO builds upon the experience of the last half-century in the antitrust and securities areas and generalizes it across the marketplace. As the antitrust acts seek to maintain economic freedom in the marketplace, RICO seeks, in the fraud area, to promote integrity in the marketplace. As such, RICOproperly applies to racketeering activity, no matter who engages in it. The rich and the strong-armed must not be allowed to win their special pleas and to place their thumb on the scales of justice. RICO is neither antibusiness nor probusiness. It is provictim. Mr. Bolton’s proposal should be rejected.
Mr. Speaker, I include a copy of Mr. Bolton’s letter in the Record following my remarks:
U.S. Department of Justice,
Office of Legislative and
Intergovernmental Affairs,
Washington, DC, July 22, 1986.
Hon. George Bush,
President, U.S. Senate, Washington, DC.
Dear Mr. President.
Enclosed for your consideration and appropriate reference is a bill to amend section 1964(c) of title 18, United States Code — the provision in the Racketeer Influenced and Corrupt Organizations (“RICO“) Act that permits federal treble damage suits for injuries caused by RICO violations. The proposed bill would amend the statute to require proof of a prior criminal conviction as an essential element of a private civil RICO suit for treble damages. This restriction would not apply to civil RICO suits brought by the United States when it has just been injured by RICO violations. The Department of Justice believes that this approach would best respond to the increasingly troublesome issues that civil RICO litigation has raised over the past several years.
The need for civil RICO reform is clear. Recent Congressional hearings, court decisions, and studies by the Department of Justice and others have made it plain that private civil RICO enforcement is severely flawed in two fundamental respects. First, private RICO suits have not achieved their intended purpose as supplements to the federal government’s criminal enforcement efforts against organized crime. Second, private uses of the statute have created clear and substantial dangers to other important federal interests.
When it enacted section 1964(c) as part of the Organized Crime Control Act of 1970, Congress hoped that private civil suits would assist in preventing infiltration of legitimate business by organized crime. That hope has not been realized. Fewer than ten percent of private civil RICO actions have been based on what is ordinarily considered to be organized crime activity. Instead, the vast majority of actions has arisen out of commonplace commercial transactions allegedly involving fraud on the part of businesses and individuals that have no connection to organized crime. Other unanticipated applications of the statute have occurred in cases involving claims of sexual harassment, disputes over the leadership of a synagogue, and routine divorce controversies. Civil RICO has been used to attack an undercover FBI investigation of corruption in the Cleveland municipal court system.
The unexpected evolution of section 1964(c) into “something quite different from the original conception of its enactors,” see SEDIMA, S.P.R.L. v. IMREX CO., INC., 105 S. Ct. 3275, 3287 (1985), has lead to the unnecessary and unwise federalization of an area of the law that is best reserved to the states, and has had other significant detrimental consequences as well.
We do not believe that, when it enacted RICO, Congress thought it necessary to create a general federal remedy for fraud, or that it intended to do so. More to the point, there is today no valid reason to permit civil RICO‘s continued use in this manner, and every good reason for declining to do so.
To begin with, there is no need for a general federal fraud remedy. Persons who engage in serious fraud can be, and frequently are, prosecuted for criminal offenses under both federal and state statutes. In addition, federal laws and judicial decisions afford civil redress for specific types of fraudulent conduct, such as securities fraud, and state statutes and common law principles permit civil recovery for those species of fraud not covered by federal law. We know of no shortcomings in these various provisions such as would warrant adoption of a broad federal remedy for fraud.
Moreover, private civil RICO litigation has had a number of serious repercussions. First, the increasing use of section 1964(c) as a federal fraud remedy threatens to undermine carefully crafted and well established federal statutory schemes that have been developed to regulate the securities, commodities, banking, accounting, and savings and loan industries. In the securities area, for example,a plaintiff alleging fraud will always have an incentive to seek treble damages under civil RICO rather than, or in addition to, pursuing a claim for compensatory damages under the Securities Act of 1933 or the Securities Exchange Act of 1934, or under state law.
Second, the availability of section 1964(c) as a general federal fraud remedy undercuts standing limitations and procedural requirements that have been developed over fifty years to restrict access to federal courts. The Securities Act of 1933 and the Securities Exchange Act of 1934 provide express and implied causes of action for violations of each Act. These statutes, however, strictly limit standing to sue by imposing a purchaser/seller requirement; they also impose stringent requirements of proof regarding “causation,” “materiality,” and “reliance.” Private civil RICO plaintiffs who allege securities fraud can now completely circumvent these federal securities law limitations. Because approximately 40 percent of private civil RICO actions involve claims of securities fraud, and because civil RICO permits the evasion or undermining of carefully crafted statutory schemes in other areas as well, civil RICO has the potential to undermine legal doctrines that have evolved over decades to adjudicate claims in each of these areas.
Equally serious is the threat of civil RICO liability to legitimate businesses engaged in purely commercial transactions. Section 1964(c) permits virtually any legitimate business enterprise to be charged with “racketeering” and threatened with a judgment for treble damages and attorneys’ fees, simply on the basis of an ordinary commercial dispute. Civil RICO skews dispute resolution in commercial cases, extorts settlements and increases legal fees, which costs ultimately will be passed on to the purchasers of the goods or services.
Finally, absent any need for a pervasive federal fraud remedy it is inconsistent with the nation’s constitutional principles to exert federal jurisdiction over forms of conduct that traditionally and appropriately have been regarded solely as matters of state concern. The observance of sound principles of federalism is not merely a theoretical imperative. The approach of leaving to the states all matters regarding which there is not a persuasive and constitutionally justifiable reason for federal involvement is dictated by practical considerations as well. Chief among these is the inappropriate and increasingly heavy burden that private civil RICO suits impose on the federal courts. It is no exaggeration to say that there has been an explosion of private civil RICO lawsuits over the past several years, nor does it seem unresonable to predict a continuation of this trend as the statute’s unusually attractive civil remedy becomes more widely understood and as efforts are made to apply it to an ever expanding range of conduct. Indeed, the recent emergence of a “Civil RICO Bar,” replete with specialized reporting services, seminars, and practical courses of instruction, virtually ensures this result.
The unintended and undesirable evolution of section 1964(c) into a general federal fraud remedy requires an unequivocal Congressional response which accommodates important federal interests. These interests include maintaining the federal government’s successful use of RICO‘s criminal provisions against large-scale organized criminal activities and enhancing the government’s ability to make effective use of RICO‘s civil provisions. Other federal interests that should be taken into account include observance of sound principles of federalism, eliminating burdensome litigation, and assuring the fair operation of our federal courts.
Several legislative approaches to civil RICO reform have been suggested. A common element of each proposal is that each would retain civil RICO‘s private enforcement mechanism, while limiting the circumstances to which it could apply. Over the past year, we have carefully considered each of these proposals in light of the federal interests discussed above. We have concluded that a requirement for a “prior criminal conviction” as a prerequisite to private civil RICO suits, is the preferable approach. If this approach is adopted, the vast majority of abusive and vexatious civil RICO litigation would be eliminated and ordinary state law fraud cases would remain in state court where they belong.
By contrast, changes in the definition of “pattern of racketeering activity” could also make it more difficult to obtain criminal convictions, while doing little to relieve federal courts of the burden of having to interpret and apply a general federal fraud remedy. A “fraud plus” requirement might not interfere directly with criminal prosecutions under RICO, but could limit the government’s ability to use civil RICO effectively and would not be responsive to federalism concerns.
The fundamental problem with section 1964(c), lies in its underlying premise — that civil suits by private litigants — in the absence of a prior criminal conviction — can reasonably be expected to discourage organized crime’s efforts to infiltrate legitimate businesses. Experience and logic show this principle to be untenable. Private civil RICO enforcement has not succeeded in providing an effective weapon against organized crime. Indeed, one of the most significant aspects of civil RICO has been its virtual neglect by those for whose benefit the private remedy was provided — the victims of organized crime. No doubt many potential plaintiffs have foregone private suits out of fear of physical retaliation,a consequence for which not even the prospect of treble damages and attorneys’ fees could compensate. Moreover, even the most courageous victim might conclude that he could never collect a judgment for damages, either because potential individual defendants had no assets or because potential corporate defendants had been assessed heavy fines or had forfeited their assets to the government in the wake of a successful criminal prosecution. Our proposed amendment would remedy these problems by ensuring that private civil RICO actions are brought only against convicted criminals, the group that Congress intended to reach.
The Supreme Court, in the SEDIMA case, explicitly recognized this basic flaw in civil RICO, and just as plainly invited Congress to correct it:
“It is true that private civil actions under this statute are being brought almost solely against [respected and legitimate enterprises], rather than against the archetypical, intimidating mobster. Yet this defeat — if defeat it is — is inherent in the statute as written, and its correction must lie with Congress. It is not for the Judiciary to eliminate the private section in situations where Congress has provided it simply because plaintiffs are not taking advantage of it in its more difficult applications.” (105 S. Ct. at 3287) [footnote omitted].
Given private civil RICO‘s failure as a useful weapon against organized crime, we believe that private enforcement should be modified to require a prior conviction before further damage is done to important federal interests. Such a course will not impair the legitimate interests of plaintiffs who can now use civil RICO in lieu of remedies provided by state law and other federal statutes. Those other state and federal remedies will continue to be available. Moreover, if individual states believe that an additional remedy, comparable to that now provided by section 1964(c), is needed to protect their interests or those of their citizens, they are free to take appropriate legislative action.
Concurrently with amendment of private civil RICO suits, we recommend that the statute be amended to clarify the federal government’s ability to obtain monetary redress for organized criminal activity that causes injury to the United States. In the belief that such authority already exists, we filed such a suit last year in the Middle District of Florida. The court in that case has sustained our view, but because the question is not entirely free from doubt we think it would be wise to amend the statute so that it explicitly allows the United States to file damage suits for injuries suffered by it as a result of civil RICO violations.
The government already has authority to sue for injunctive relief on behalf of others and, presumably, on its own behalf as well. Thus, it would be anomalous to deny it the right to sue for damages when the United States has been injured by a RICO violation. Such suits could provide a particularly valuable method of protecting the public treasury from fraudulent misuse of federal funds. Damage suits by the United States would make possible the recovery of federal funds — provided either through government programs or government contracts — that have been fraudulently obtained or misused, as well as the recovery of other losses suffered by the government. For example, in the Florida case just referred to, the government is attempting to recover more than $47 million from two businessmen and three companies previously convicted of criminal RICO fraud against the government in connection with the awarding of Department of Defense contracts.
The option to sue under such a provision would provide other benefits as well. For example, the possibility of recovering treble damages under RICO might make litigation worthwhile in situations in which the recovery of compensatory damages might not be cost effective but where important governmental interests should nevertheless be vindicated. Second, the possibility of a treble damage suit by the government could have a significant deterrent effect on persons contemplating fraudulent acquisition or misuse of government funds. With all of the recent revelations of possible fraud in the area of government contracts, such added deterrence would certainly be welcome. In this connection, it is important to remember that the federal interest in an effective effort against organized, systematic illegality — whether manifested by fraud against the government or other conduct detrimental to the United States — is, in essence, an interest in a result. We believe that the government should have effective tools to achieve that result in appropriate cases.
Adoption of this proposal could provide significant benefits to the government, and substantially enhance the deterrent impact of civil RICO. At the same time, because the Department currently screens and controls these cases as carefully as it oversees the uses of RICO‘s criminal provisions, and would continue to do so in the future, there would be no basis for criticisms such as are now being generated by irresponsible uses of the civil RICO statute by private plaintiffs.
The attached bill would amend 18 U.S.C. § 1964(c) as discussed above by requiring a prior criminal conviction for racketeering activity under section 1962 before a private party (which under the statute includes state and local governments) would be permitted to maintain a civil action. Suits by the United States are exempted from this restriction and expressly authorized by a new subsection (d). Finally the private cause of action is also limited by a new, two year statute of limitations, running from the date of the latest criminal conviction.
This is a most significant proposal which would respond in a sensible and effective manner to increasingly serious problems that have arisen in the interpretation and application of an important federal statute directed at the menace of organized crime. I would request that it be given careful and speedy consideration.
As explained above, the Department of Justice believes that, by helping to alleviate burdensome and vexatious litigation, enactment of this bill would have a salutary effect on the workload of the federal courts.
Tuesday, October 27, 1987