Saturday, August 14, 2004

law.com Law Dictionary (Court of Equity)

law.com Law Dictionary

law.com Law Dictionary (Court of Law)

law.com Law Dictionary

Notes to Rule 38 of Federal Rules of Civil Procedure

: " Federal Rules of Civil Procedure


NOTES TO RULE 38
HISTORY: (Amended July 1, 1966; Aug. 1, 1987; Dec. 1, 1993)
Notes of Advisory Committee on Rules.
This rule provides for the preservation of the constitutional right of trial by jury as directed in the enabling act (act of June 19, 1934, 48 Stat 1064, USC, Title 28, former � 723c (now � 2072)), and it and the next rule make definite provision for claim and waiver of jury trial, following the method used in many American states and in England and the British Dominions. Thus the claim must be made at once on initial pleading or appearance under Ill Rev Stat (1937) ch 110, � 188; 6 Tenn Code Ann (Williams, 1934) � 8734; compare Wyo Rev Stat Ann (1931) � 89-1320 (with answer or reply); within 10 days after the pleadings are completed or the case is at issue under 2 Conn Gen Stat (1930) � 5624; Hawaii Rev Laws (1935) � 4101; 2 Mass Gen Laws (Ter Ed 1932) ch 231, � 60; 3 Mich Comp Laws (1929) � 14263; Mich Court Rules Ann (Searl, 1933) Rule 33 (15 days); England (until 1933) O. 36, r. r. 2 and 6; and Ontario Jud Act (1927) � 57(1) (4 days, or, where prior notice of trial, 2 days from such notice); or at a definite time varying under different codes, from 10 days before notice of trial to 10 days after notice, or, as in many, when the case is called for assignment, Ariz Rev "

Lying in Court - Nolo

Lying in Court - Nolo: "Another fact little known to those who don't live in the court system every day is that there is rarely any earthly punishment for lying in court. There is, of course, the crime of perjury. Here is how California defines it (a definition that's pretty typical of those used by other states):
'Every person who, having taken an oath that he or she will testify...truly before any competent tribunal..., willfully...states as true any material matter which he or she knows to be false...is guilty of perjury.'"

Wednesday, August 11, 2004

Appealing a Trial Denial - New Jersey Law Journal

Copyright 2004 ALM Properties, Inc. All Rights Reserved.
New Jersey Law Journal

February 20, 2004

LENGTH: 1589 words

HEADLINE: Appealing a Trial Denial;
Weigh the three options carefully, because the ramifications
of each are different and the consequences can be significant

BYLINE: By Aaron S. Bayer; Bayer is chairman of the appellate practice group at Wiggin & Dana of New Haven, Conn.

BODY:
What should you do when a demand for a jury trial in a federal civil case is denied? Surprisingly, there is no simple answer to this question, and the standards governing appeals from denials of civil jury trials are the subject of a circuit split that the U.S. Supreme Court has declined to resolve.

Litigants denied a civil jury trial by a federal district court have at least three options: [1] petitioning the court of appeals for a writ of mandamus; [2] pursuing a permissive interlocutory appeal under 28 U.S.C. 1292[b]; or [3] appealing the denial of a jury trial after final judgment.

Writ of Mandamus

In general, a writ of mandamus is used only in very limited circumstances, typically to order a lower court to perform a nondiscretionary act or to reverse actions that "amount ... to a judicial 'usurpation of power.'" Hahnemann Univ. Hosp. v. Edgar, 74 F.3d 456 [3d Cir. 1996]. The writ of mandamus, however, has found a special niche in protecting the right to a jury trial.

As long ago as 1918, the U.S. Supreme Court recognized mandamus as the appropriate vehicle to cure erroneous denials of a civil jury trial. In re Simons, 247 U.S. 231 [1918]. The Court based its conclusion on judicial economy -- avoiding duplicative bench and jury trials -- and the convenience of prejudgment appeal to litigants.

This reasoning survived over the ensuing decades, and in 1959, the Court affirmed that "[w]hatever differences of opinion there may be in other types of cases ... the right to grant mandamus to require jury trial where it [has] been improperly denied is settled." Beacon Theatres Inc. v. Westover, 359 U.S. 500 [1959]. Several years later, the Court reiterated that courts of appeals have the "responsibility ... to grant mandamus where necessary to protect the constitutional right to trial by jury." Dairy Queen Inc. v. Wood, 369 U.S. 469 [1962].

The Supreme Court has not, however, resolved a disagreement over the proper standard for issuance of mandamus when a jury trial denial is challenged. In other contexts, a writ of mandamus is an extraordinary remedy, which requires a high threshold showing that the petitioner has no other adequate means to secure the requested relief and has a "'clear and indisputable'" right to the relief. Mallard v. United States Dist. Ct., 490 U.S. 296 [1989].

While some circuits have not squarely addressed the issue, several have taken the Supreme Court's decisions in Dairy Queen and Beacon Theatres to mean that the writ should issue if a de novo review shows that the district court erred in denying a jury trial, without the extraordinary showing usually required for mandamus. See, e.g., Maldonado v. Flynn, 671 F.2d 729 [2d Cir. 1982].

The Ninth U.S. Circuit Court of Appeals stated the principle plainly in Wilmington Trust v. United States Dist. Ct., 934 F.2d 1026 [9th Cir. 1991]: "The right to a jury trial ... has occupied an exceptional place in the history of the law of federal mandamus permitting a writ to issue although the petitioner is unable to show a 'clear and indisputable' right."

Mandamus Standards

The Seventh Circuit, however, has insisted that the usual high-threshold standards for mandamus be met in cases challenging a jury trial denial. In First Nat'l Bank of Waukesha v. Warren, 796 F.2d 999 [1986], the court noted that jury trial denials can generally be corrected on appeal of a final judgment and that review on a mandamus petition entails "all of the vices of an interlocutory appeal."

The circuit maintained that if principles of judicial economy support more lenient mandamus standards in the jury trial context, they support interlocutory review of other pretrial and trial errors as well.

The court ultimately read Beacon Theatres and Dairy Queen as authorizing mandamus "only when a clear right to a jury trial could not be vindicated on appeal from the final judgment."

The Supreme Court has passed on the opportunity to resolve this issue, denying certiorari in a Seventh Circuit case that applied the First National Bank standard in rejecting mandamus relief from a jury trial denial. Kamen v. Nordberg, 485 U.S. 939 [1988]. Justice Byron White dissented, noting that First National Bank conflicts with other courts of appeals decisions holding that "a proper petition for mandamus in these circumstances obliges the Court of Appeals to address the merits of the claimed right to a jury trial" and that the Seventh Circuit rule "may also be inconsistent" with Beacon Theatres.

In circuits that do not apply the usual heightened mandamus standards in reviewing jury trial denials, the appellate court's decision on the petition will become the law of the case, and appeal of the issue after final judgment will be barred. This is obviously an important consideration in determining whether to pursue a mandamus petition.

Law of the case, however, applies only to issues actually decided on the merits, and thus would not apply to an order denying a petition based on the traditional heightened mandamus standards. See Kennedy v. Lubar, 273 F.3d 1293 [10th Cir. 2001], and Moore v. Sun Oil Co., 636 F.2d 154 [6th Cir. 1980].

Thus, in any court following the Seventh Circuit's approach in First National Bank, a denial of mandamus based on the heightened threshold showing would not bar review of the jury trial issue on appeal from final judgment. A petitioner in the Seventh Circuit, therefore, may get two bites at the apple, ironically increasing the incentive to petition for mandamus in that circuit.

The Section 1292[b] Option

As an alternative to mandamus, counsel can move for certification of a jury trial denial for interlocutory appeal under 28 U.S.C. 1292[b]. Section 1292[b] requires that there be "substantial ground for difference of opinion" over a "controlling question of law" and that an immediate appeal "may materially advance the ultimate termination of the litigation." The availability of such an appeal is subject to the discretion of both the district court and the court of appeals.

Section 1292[b] has been used to permit early review of jury trial rulings, especially when they raise an issue of first impression. District courts may also certify jury trial issues for appeal under §[1292[b] sua sponte.

In some cases, after certifying a jury trial denial for immediate appeal, district courts have required the objecting party to pursue certification in the court of appeals or be deemed to have waived the right to a jury trial.

In deciding whether to seek §[1292[b] certification, counsel should consider whether the trial court's ruling raises an issue of first impression or a legal issue over which there is genuine debate. Counsel should also consider how the trial judge may react to the litigant's seeking mandamus without first having provided the judge the opportunity to certify the question for appeal under §[1292[b].

Counsel must remember that, if certification is granted, the ruling of the court of appeals on the merits of the jury trial issue will become the law of the case and preclude an appeal of this issue after final judgment.

There is no requirement that one seek interlocutory review of a jury trial denial through mandamus or §[1292[b] in order to preserve the issue for review in a post-judgment appeal. On appeal from final judgment, appellate courts review the district court's denial of a jury trial de novo.

Erroneous rulings denying a jury trial are deemed to be harmless error only if a directed verdict for the opposing side would have been warranted -- that is, if the matter should never have gone to the jury. See, e.g., Crocker v. Piedmont Aviation Inc., 49 F.3d 735 [D.C. Cir. 1995].

Counsel should become familiar with the options for seeking review of a jury trial denial and the consequences that flow from pursuing each option in their circuit.

If a jury trial is critically important, for trial strategy or for leveraging a settlement, seeking interlocutory review may outweigh the risk of an adverse interlocutory ruling precluding appeal of the issue from final judgment. If a jury trial is desirable but not essential, it may make sense to wait until final judgment to appeal the issue.

If the litigant prevails in the bench trial, an appeal is unnecessary; if he loses, and a jury trial was improperly denied -- and if the case is strong enough to survive a directed verdict -- a new jury trial will be ordered on appeal.

On the other hand, this strategy entails the risk and expense of two trials. A court of appeals may also be unreceptive to an appellant who has clearly held the jury trial issue in his pocket while he waited to see how he fared in the bench trial.

Given these legal and strategic considerations, trial and appellate counsel should consult as soon as a motion for jury trial is denied and carefully weigh the options for appealing the issue.

LexisNexis(TM) Academic - Document (Demand for Jury Trial)

LexisNexis(TM) Academic - Document

Copyright 2004 ALM Properties, Inc. All Rights Reserved.
New York Law Journal

April 26, 2004, Monday

SECTION: DECISIONS; Vol. 79; Pg. 31

LENGTH: 352 words

HEADLINE: Surrogate's Court Decision;
Surrogate Feinberg

BODY:
ESTATE OF MILDRED V. STRAND Respondent's motion to grant their demand for a jury trial pursuant to CPLR §[4102[e] is denied.

A demand for a jury trial is required to be made within six days after being served with an answer or objections, [SCPA §[502[2][a]].

The Surrogate's Court may relieve a party of a failure to demand a jury and will look to the criteria under CPLR §[4102[e] which permits a late jury demand "if no undue prejudice to the rights of another party would result." Respondent filed a verified answer on or about January 10, 2001. Petitioner filed an answer to respondent's counterclaims on or about March 23, 2001 and petitioner served respondent with an amended verified petition to add an additional party on or about July 7, 2003.

Respondent states that the answer was drafted by a former associate in the firm who was admitted to the New York State Bar less than a year before drafting the answer.

The court is mindful of case law that allowed the late filing of a jury demand when it was the result of lack of familiarity with procedure and inexperience of the attorney's assistant, who had been admitted to the Bar for only two years, [In re Beatty's Will, 205 Misc 962].

However, only if no prejudice can be shown will the court utilize CPLR §[4102[e] to permit a late demand as in Matter of Mirsky, 81 Misc2d 9, where the objectant was excused from filing a late demand where the delay was short and the other party not prejudiced, [Matter of Osgood, NYLJ, Dec 2, 1992, p. 26 [col. 4].

Over three years have past since the filing of the answer and this motion was brought on the eve of trial after discovery has been completed .

Accordingly, the respondent's demand for a jury trial is denied.

As a note of issue and certificate of readiness have been filed, this matter is set down for trial on May 11, 2004 and May 12, 2004 at the Surrogate's Court, 2 Johnson Street, Brooklyn, New York 11201 at 10:30 A.M.

This constitutes the decision and order of the court.

LexisNexis(TM) Academic - Document (Demand for Jury Trial)

LexisNexis(TM) Academic - Document

Copyright 2004 ALM Properties, Inc. All Rights Reserved.
New York Law Journal

April 26, 2004, Monday

SECTION: DECISIONS; Vol. 79; Pg. 31

LENGTH: 352 words

HEADLINE: Surrogate's Court Decision;
Surrogate Feinberg

BODY:
ESTATE OF MILDRED V. STRAND Respondent's motion to grant their demand for a jury trial pursuant to CPLR §[4102[e] is denied.

A demand for a jury trial is required to be made within six days after being served with an answer or objections, [SCPA §[502[2][a]].

The Surrogate's Court may relieve a party of a failure to demand a jury and will look to the criteria under CPLR §[4102[e] which permits a late jury demand "if no undue prejudice to the rights of another party would result." Respondent filed a verified answer on or about January 10, 2001. Petitioner filed an answer to respondent's counterclaims on or about March 23, 2001 and petitioner served respondent with an amended verified petition to add an additional party on or about July 7, 2003.

Respondent states that the answer was drafted by a former associate in the firm who was admitted to the New York State Bar less than a year before drafting the answer.

The court is mindful of case law that allowed the late filing of a jury demand when it was the result of lack of familiarity with procedure and inexperience of the attorney's assistant, who had been admitted to the Bar for only two years, [In re Beatty's Will, 205 Misc 962].

However, only if no prejudice can be shown will the court utilize CPLR §[4102[e] to permit a late demand as in Matter of Mirsky, 81 Misc2d 9, where the objectant was excused from filing a late demand where the delay was short and the other party not prejudiced, [Matter of Osgood, NYLJ, Dec 2, 1992, p. 26 [col. 4].

Over three years have past since the filing of the answer and this motion was brought on the eve of trial after discovery has been completed .

Accordingly, the respondent's demand for a jury trial is denied.

As a note of issue and certificate of readiness have been filed, this matter is set down for trial on May 11, 2004 and May 12, 2004 at the Surrogate's Court, 2 Johnson Street, Brooklyn, New York 11201 at 10:30 A.M.

This constitutes the decision and order of the court.

LOAD-DATE: May 2, 2004

FRCP - Rule 38 (LII 2004 ed.)

FRCP - Rule 38 (LII 2004 ed.)
Jury Trial of Right

Central District of California U.S.D.C.Local Rules
Rule Name:
Chapter:
Last Revised:
F.R.Civ.P. 38. Jury Trial of Right
Chapter I: Local Civil Rules, Integrated with Titles of Federal Rules of Civil Procedure
12/01/2003
F.R.Civ.P. 38. Jury Trial of Right
L.R. 38-1 Jury Trial Demand - Included in Pleading . If the demand for jury trial is included in a pleading, it shall be set forth at the end thereof and be signed by the attorney for the party making the demand. The caption of such a pleading shall also contain the following: “DEMAND FOR JURY TRIAL.”
L.R. 38-2 Jury Trial Demand - Removed Cases Where Jury Trial Not Demanded Prior to Removal . In all such cases removed to this Court which are not at issue at the time of removal, the demand for jury trial must be filed within ten (10) days after service of the last responsive pleading addressed to an issue triable by right by a jury. If the matter already is at issue at the time of removal, the demand must be filed within ten (10) days after the filing of the notice of removal if the demand is made by the removing party, and within ten (10) days after service of filing of the notice of removal if the demand is made by a party other than the removing party.
L.R. 38-3 Jury Trial Demand - Marking Civil Cover Sheet Insufficient . Marking the Civil Cover Sheet shall not be deemed a sufficient demand to comply with F.R.Civ.P. 38(b) or L.R. 38-1 and 38-2.
L.R. 38-4 Exceptions . The provisions of L.R. 38-3 shall not prevent the use of printed forms provided by the Clerk or by the Administrative Office of the United States Courts.

LSC: Laws Affecting LSC: Civil Forfeiture Reform Act

LSC: Laws Affecting LSC: Civil Forfeiture Reform Act

Tuesday, August 10, 2004

P Greg Parham Calls 08/10/2004 08:39am

P Greg Parham, Assistant United States Attorney, called today, August 10, 2004 at 8:39am to inform me that Department of Homeland Security Agents, the FAA, and mechanics were on site to ascertain the airworthiness of the Piper Navajo. He also told me that he had just spoken with Jeff regarding the same issue. He told me that their intention was to fly it to a federal government storage facility. He further stated that in if they were unable to ascertain the airworthiness of the aircraft that they were going to disassemble the aircraft, load it up onto a truck and drive it away. He stated to me that I had been unwilling to provide the maintenance log books in the past and asked me if I would voluntarily provide the log books. I told him that his choice of words were disturbing. He states that I have been unwilling to provide them with the log books. I told him that I have repeatedly told the Department of Homeland Security that I am not in possession of the log books. Parhams choice of words were inappropriate. He told me that Jeff said that I had possession of the log books. His comment seemed odd to me and I responded to Parham that I guess Jeff really could not know the answer to that question.

Parham asked me when would be a good day to do a conference so that we can submit a joint report to the court. He suggested August 20, 2004. I told him that the earlier the better for me. He said that he would schedule it for 9am on the 20th of August and that he will send it to me in writing. The appearance before the court is scheduled for September 13, 2004. I told him that I am requesting a jury trial. He said that I should have requested that in my pleading. I told him that I have not made any pleadings; I have just responded to the Complaint. He told me that Court rule dictates that I would have requested a jury trial within 10 days of the Complaint. I will verify this and I do not think this to be true. I will request a jury trial from the court.

I took the opportunity to ask Parham about the notification that the court supposedly sent to Jeff and to myself informing us about the joint conference. Jeff says that the court documents online state that the document was delivered to both of us and signed for by an unintelligible signature. I will further investigate this also.

Sunday, August 08, 2004

Assumption Province Vocations Byzantine Rite

Assumption Province Vocations Byzantine Rite: "As Franciscan friars, we belong to an evangelical order - meaning our call is to proclaim the Gospel of Jesus Christ by our very life. This call uniquely shapes our life and ministry."

Sunday, August 01, 2004

The Original Axis of Evil

Working Definition of Fascism:
A form of political behavior marked by obsessive preoccupation with community decline, humiliation or victimhood and by compensatory cults or unity, energy and purity, in which a mass-based party of committed nationalist militants, working in uneasy but effective collaboration with traditional elites, abandons democratic liberties and pursues with redemptive violence and without ethical or legal restraints goals of internal cleansing and external expansion. The Anatomy of Fascism by Robert O. Paxton. 321 pp. New York; Alfred A. Knoptf.

Fine-tuning definitions, however, is less important for the future than identifying and neutralizing fascist threats. This recognition will come, Paxton believes, "not by checking the color of shirts" but "by understanding how past fascisms worked. We should :not look for exact replicas, in which fascist veterans dust off their swastikas he writes: nor should we look for hate crimes and extreme nationalist propaganda. Rather, we should address the conditions and the enablers - political deadlocks in times of crises, and conservatives who want tougher allies and elicit support through nationalist and racist demagogy.

Friday, June 18, 2004

ANSWER AND OPPOSITION TO PLAINTIFF’S COMPLAINT FOR FORFEITURE IN REM. REQUEST FOR STAY OF CIVIL FORFEITURE CASE

JUAN DAVID DE JESUS
411 NORTH PALM DRIVE #14
BEVERLY HILLS, CA 90210

In Pro Per



UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA
WESTERN DIVISION

UNITED STATES OF AMERICA
Plaintiff
vs.
ONE PIPER NAVAJO AIRPLANE, SERIAL NO. 31P-21
Defendant Case No.: CV 04-2785 RGK (FMOx)

ANSWER AND OPPOSITION TO PLAINTIFF’S COMPLAINT FOR FORFEITURE IN REM. REQUEST FOR STAY OF CIVIL FORFEITURE CASE





Dated this 14th day of June, 2004


JUAN DAVID DE JESUS
411 NORTH PALM DRIVE #14
BEVERLY HILLS, CA 90210



I (“De Jesus”) am an interested party as owner of the Defendant Piper Navajo Airplane, Serial No. 31P-21. The following is my answer and opposition to the Plaintiff’s Complaint for Forfeiture in Rem. I am a United States Citizen and hold an Airline Transport Pilot Certificate, issued by the Federal Aviation Administration, with ratings of airplane multiengine land, turbine and jet rating, and commercial privileges. I own an aircraft with the description of Piper Pressurized Navajo, serial number P31-21. My aircraft is based at Santa Monica Airport in Santa Monica California. I have been a fixture at Santa Monica Airport for approximately 27 years; and most of the Fixed Based Operators at the airport, business owners and most aircraft owners know me and can attest to my integrity. As a pilot, I am governed by the Federal Aviation Regulations (FAR) of the Federal Aviation Administration (FAA). I am known by others to strictly adhere to these regulations even to the point of causing inconvenience to passengers, crew and myself. The safety of my passengers is of the utmost importance. The types of flights that I have conducted have often been flights that are Air Medical and Mercy Flights. I am a member of Angel Flight, which is a not-for profit organization with a volunteer corps of more than 5,000 pilots who fly under the banner of Angel Flight America. The organization provides flights of hope and healing by transporting patients and their families in private aircraft, free of charge, to hospitals for medical treatment. We also provide flights in a national crisis or whenever there is a compelling human need, including family, community or national crisis. My affiliations in the past have been with Medivac, an Air-Ambulance organization based in San Diego, Medical AirXpress, and Ultimate Jet to name a few. Apart from these, I have conducted corporate flights for various companies including Dream Works, Federal Express, and Warner Bros. My passengers have included a large array of people, ranging from heads of state, celebrities, senior corporate executives and figureheads such as the Dalai Lama to the poorest of the poor. I have extensive community ties. I am a Business Financial Analyst Consultant rendering services to companies such as Warner Bros., Cedars Sinai Medical Center, Countrywide Home Loans, Sony, 20th Century Fox, MGM, Amanecer Community Counseling Service and Vista Del Mar Child and Family Services. I am a member of Good Shepherd Catholic Church located in Beverly Hills, CA. where I have participated for over 15 years. I have assisted the Archdiocese of Los Angeles in teaching catechism to the Spanish speaking in the parish of St. Anne’s Catholic Church located in Santa Monica for over 15 years. I have also been a mentor to troubled kids in the Juvenile Detention Centers for over 15 years and have been a part of the detention ministry team at St. Paul the Apostle Catholic Church in Westwood. I have been a resident of Beverly Hills for over 15 years and have participated within our City Council meetings. I have led Parent Development Courses within the Beverly Hills School District. I have not knowingly been involved in any criminal activity.
I. INTRODUCTION
I am disheartened and dismayed that P. Greg Parham, Special Assistant United States Attorney has filed on behalf of the United States (Plaintiff) a document that has the intention of misleading the court. The document is full of misstatements and falsehoods. P. Greg Parham has sworn as an attorney, licensed by the state of California, and as a constituent of the United States Government to always present the truth; and in the document he has presented he has broken his oath. Likewise, Special Agent Michael Dalto has perjured himself in verifying and swearing that the information contained in the document is true. It is my contention that this act is both conspiratorial and malicious with the intent of obstructing justice and seeking material gain. It has been my experience and the experience of numerous other persons, which Michael Dalto has interviewed, that he has used tactics putting words into the mouths of those he interviews. This act is malevolent because it does not seek truth. On the contrary, it goes against all moral and just principles, besides being a mortal sin by bearing false witness. Moreover, the document presented by the Plaintiff is full of misstatements, ambiguities and contradictions; and the testimonies of those individuals allegedly giving the statements are not supported by a sworn statement at the end of the document. Furthermore, I contend that the United States is not entitled to file a Complaint for Forfeiture in Rem because Due Process and Federal law requires the property to be returned to the owner.
II. STATEMENT OF FACTS
1. The Plaintiff is being unjustly enriched and is holding specific property of mine, namely said Piper Navajo Serial Number P31-21. This is a point that the court must address.
2. The Plaintiff has committed Fraud and Misrepresentation of material facts as well as perjury in its Complaint for Forfeiture in Rem.
3. I, the Interested Party “De Jesus” contend that the Plaintiff has committed intrinsic and extrinsic fraud along with other wrongful acts. The Plaintiff has submitted to the court a statement that is misleading, conspiratorial and filled with error and conjecture. The Plaintiff has signed this document under penalty of perjury with the express intention of misleading the court, which constitutes the commission of intrinsic fraud as well as obstruction of justice.
4. I, the Interested Party “De Jesus” contend that my aircraft is not subject to forfeiture because I, the Interested Party “De Jesus” have shown ample evidence pursuant to Section 274 (8 U.S.C. 1324) and Section 983 in both the Personal Interview with the Department of Homeland Security on December 10, 2003 and with the Interested Party “De Jesus”’s Petition for Remission or Mitigation of Forfeiture. I, the Interested Party “De Jesus” have not, knowingly or in reckless disregard of the law, committed any crimes.
5. The Plaintiff has fraudulently kept me, the Interested Party “De Jesus” from accessing information and obtaining evidence that would further the Interested Party “De Jesus”’s cause and seeking justice, thus constituting extrinsic fraud. Given that the Department of Homeland Security has a history of placing false statements within its documents to further its position, an act which I have personal knowledge and which can be substantiated by evidence, this makes the Interested Party “De Jesus”’s plea all the more urgent. The Department of Homeland Security has a history of violating the constitutional rights of the inhabitants of this land as well as sidestepping the safeguards of the constitution.
6. The Interested Party “De Jesus” further contends that the Plaintiff has committed Fraud and Abuse of Process as well as intentional and negligent infliction of emotional distress.
7. The Interested Party “De Jesus” contends that constitutional violations have been committed by Federal Agents. The Supreme Court had long held that federal courts had the power to grant relief not expressly authorized by statute as well as the power to adjust remedies to grant relief made necessary by the particular circumstances of the case at hand.
8. The Interested Party “De Jesus” contends that conspiracy of federal agents has occurred through the existence of an express or implied agreement among the Plaintiffs to deprive someone of constitutional rights, and an actual deprivation of those constitutional rights resulting from the agreement.
9. There is a related case CV 04-1207 NM(FMOx) that is pending and the Plaintiff’s Complaint for Forfeiture in Rem should be postponed and/or dismissed until the outcome of the related case. It would be contrary to the interest of justice to go forward with the Plaintiff’s complaint without knowing the outcome of the related case.
10. The interested party “De Jesus” has been denied due process by the Plaintiff who is in violation of the Fourteenth Amendment of the Constitution of the United States of America.
11. Section 274 (8 U.S.C. 1324) (b)(1) states: that no conveyance used by any person as a common carrier in the transaction of business as a common carrier shall be forfeited unless it shall appear that the owner of other person in charge of such conveyance was a consenting party or privy to the illegal act.
12. One hundred sixth Congress of the United States of America on January 24, 2000 states:
§ 983 (a) (1)(A)(i) In any nonjudicial civil forfeiture proceeding under a civil forfeiture stature, with respect to which, the Government is required to send written notice to interested parties, such notice shall be sent in a manner to achieve proper notice as soon as practicable, and in no case more than 60 days after the date of seizure.
§ 983 (a) (1) (F) (i) If the government does not send notice of a seizure of property in accordance with subparagraph (A) to the person from whom the property was seized, and no extension of time is granted, the Government shall return the property to that person without prejudice to the right of the Government to commence a forfeiture proceeding at a later time.
§ 983 (a) (3)(B) The Government shall promptly release the property pursuant to regulations promulgated by the Attorney General, and may not take any further action to effect the civil forfeiture of such property in connection with the underlying offense.
§ 983 (f) Release of Seized Property (3) (A) If not later than 15 days after the date of a request under paragraph (2) the property has not been released, the claimant may file a petition in the district court in which the complaint has been filed or, if no complaint has been filed, in the district court in which the seizure warrant was issued or in the district court for the district in which the property was seized.
13. The Civil Asset Forfeiture Reform Act, effective August 23, 2000, states: Sec. 983. General rules for civil forfeiture proceedings
(a) NOTICE; CLAIM; COMPLAINT- (1) (A) (i) Except as provided in clauses (ii) through (v), in any nonjudicial civil forfeiture proceeding under a civil forfeiture statute, with respect to which the Government is required to send written notice to interested parties, such notice shall be sent in a manner to achieve proper notice as soon as practicable, and in no case more than 60 days after the date of the seizure. (F) If the Government does not send notice of a seizure of property in accordance with subparagraph (A) to the person from whom the property was seized, and no extension of time is granted, the Government shall return the property to that person without prejudice to the right of the Government to commence a forfeiture proceeding at a later time.
(c) BURDEN OF PROOF- In a suit or action brought under any civil forfeiture statute for the civil forfeiture of any property--
(1) The burden of proof is on the Government to establish, by a preponderance of the evidence, that the property is subject to forfeiture;
(2) The Government may use evidence gathered after the filing of a complaint for forfeiture to establish, by a preponderance of the evidence, that property is subject to forfeiture; and
(3) If the Government's theory of forfeiture is that the property was used to commit or facilitate the commission of a criminal offense, or was involved in the commission of a criminal offense, the Government shall establish that there was a substantial connection between the property and the offense. (f) RELEASE OF SEIZED PROPERTY- (1) A claimant under subsection (a) is entitled to immediate release of seized property if-(A) the claimant has a possessory interest in the property;
(B) the claimant has sufficient ties to the community to provide assurance that the property will be available at the time of the trial;
(C) the continued possession by the Government pending the final disposition of forfeiture proceedings will cause substantial hardship to the claimant, such as preventing the functioning of a business, preventing an individual from working, or leaving an individual homeless;
(D) the claimant's likely hardship from the continued possession by the Government of the seized property outweighs the risk that the property will be destroyed, damaged, lost, concealed, or transferred if it is returned to the claimant during the pendency of the proceeding; and
(E) none of the conditions set forth in paragraph (8) applies. (2) A claimant seeking release of property under this subsection must request possession of the property from the appropriate official, and the request must set forth the basis on which the requirements of paragraph (1) are met. (3)(A) If not later than 15 days after the date of a request under paragraph (2) the property has not been released, the claimant may file a petition in the district court in which the complaint has been filed or, if no complaint has been filed, in the district court in which the seizure warrant was issued or in the district court for the district in which the property was seized. (5) The court shall render a decision on a petition filed under paragraph (3) not later than 30 days after the date of the filing, unless such 30-day limitation is extended by consent of the parties or by the court for good cause shown. (g) PROPORTIONALITY-(1) the claimant under subsection (a) (4) may petition the court to determine whether the forfeiture was constitutionally excessive. (4) If the court finds that the forfeiture is grossly disproportional to the offense it shall reduce or eliminate the forfeiture as necessary to avoid a violation of the Excessive Fines Clause of the Eighth Amendment of the Constitution. SEC. 8. STAY OF CIVIL FORFEITURE CASE. (a) IN GENERAL- Section 981(g) of title 18, United States Code, is amended to read as follows: (2) Upon the motion of a claimant, the court shall stay the civil forfeiture proceeding with respect to that claimant if the court determines that—(A) the claimant is the subject of a related criminal investigation or case; (B) the claimant has standing to assert a claim in the civil forfeiture proceeding; and (C) continuation of the forfeiture proceeding will burden the right of the claimant against self-incrimination in the related investigation or case.
11. Taking all of the allegations of the Interested Party “De Jesus”’s complaint as true, and construing these facts in the light most favorable to the nonmoving party of the Complaint for Forfeiture in Rem (Interested Party “De Jesus”), as the court, see United States v. One 1997 Mercedes E420, 175 F.3d 1129, 1131 n.1 (9th Cir. 1999), in deciding a motion for summary judgment, the Court must view the evidence in the light most favorable to the non-moving party and must draw all permissible inferences from the submitted affidavits, exhibits, interrogatory answers, and depositions in favor of that party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 155, 91 L. Ed. 2d 202, 106 S. Ct. 2505 [1986]; Van v. City of New York, 72 F.3d 1040, 1048-49 [2d Cir. 1995], The Interested Party “De Jesus” holds that the Plaintiff has failed to carry its burden here.
12. Special Agent Michael Dalto has actually and verbally denied the existence of the Constitution of the United States in my presence in front of fellow Government Agents. He has also demonstrated racist “White Supremist” tendencies as well as made racist remarks. When I questioned him as to why he was focusing on me as opposed to other people at the airport, he responded: “White people have more money.” When I confronted him as to the constitutionality of his remark, he responded: “The constitution no longer exists.” This type of behavior, along with his sworn verification of the misstatements provided by the Plaintiff, has no room within the United States Government let alone within the United States of America. This only proves the existence of the ongoing abuse by the Department of Homeland Security, one which is presently being investigated by members of the Congress and the Senate.
III. ARGUMENT
In the Supreme Court's decision in U.S. v. James Daniel Good Real Property, 114 S.Ct. 492 ('93), the Court held that the seizure of real property for forfeiture under 21 U.S.C. S 881(a) (7) without prior notice and a hearing violates the owner's due process rights under the Fifth Amendment. The Court reasoned that the immobility of real property ordinarily removes any resort to exigent circumstances to justify dispensing with the proper preseizure notice and hearing. Id. at 503. Other courts have held that Good applies retroactively. See, e.g., U.S. v. Real Property Located at 20832..., 51 F.3d 1402, 1405 (9th Cir.'95).
Austin v. U.S., 113 S.Ct. 2801 ('93) held that civil forfeitures under 21 U.S.C. S 881(a)(7) serve in part as punishment and are therefore subject to the Eighth Amendment's prohibition on excessive fines. The Court, however, declined to enumerate the factors to be considered in determining whether a forfeiture is excessive, leaving the issue to be decided by the lower federal courts. Id. at 2812.
However, generally some form of the two-pronged approach set out above has been followed. First, under the 'instrumentality' (or 'nexus') test, the forfeited property must have a sufficiently close relationship to the illegal activity. Second, under the 'proportionality' test, forfeiture of the property must not impose upon the owner a penalty grossly disproportionate to his offense.
The instrumentality or nexus test derives from Justice Scalia's concurring opinion in Austin. In rem forfeiture, he points out, has traditionally been based on the theory that the property is guilty of an offense, that is, it has been tainted by its unlawful use. 113 S.Ct. at 2813 (Scalia, concur). Therefore, for purposes of determining whether a civil forfeiture is an excessive fine, the initial inquiry is whether the property (or the assets for which it has been exchanged in whole or in part) has a close enough relationship to the offense to permit its confiscation to any extent. As Scalia explains:
'[S]statutory in rem forfeitures have traditionally been fixed, not by determining the appropriate value of the penalty in relation to the committed offense, but by determining what property has been 'tainted ' by unlawful use, to which issue the value of the property is irrelevant. . . . The question is not how much the confiscated property is worth, but whether the confiscated property has a close enough relationship to the offense.' Id. at 2815; see Chandler, 36 F.3d at 363-6 (adopting Scalia's approach and rejecting any proportionality analysis).
Chandler notwithstanding, many courts, having found a proper 'taint,' have also applied a proportionality test to determine whether forfeiture constitutes an excessive fine. The proportionality test compares the nature of the offense with the harshness, monetary or otherwise, of the forfeiture imposed on the owner. E.g., U.S. v. Premises Known as RR #1, 14 F.3d 864, 874-5 & n.10 (3d Cir.'94); Hall Street, 853 F.Supp. at 1400; Zumirez Drive, 845 F.Supp. at 732-3. It has its sense in the Supreme Court's Cruel and Unusual Punishments Clause jurisprudence, particularly Solem v. Helm, 463 U.S. 277 ('83), where it was expressed as '[t]he principle that a punishment should be proportionate to the crime.' Id. at 284. Forfeiture of real property can be 'grossly disproportionate' to the offense involved. E.g., Hall Street, 853 F.Supp. at 1400.
Although any forfeiture must meet the instrumentality test, its potentially harsh results, when applied alone, make courts hesitate to accept it as the sole test for applying the command of Austin. Many courts accept the proportionality test as a check on the instrumentality approach.
This position is supported by the following reasons. First, the instrumentality test rests on a sharp distinction between in personam (criminal) and in rem (civil) forfeitures, the importance of which was reduced by the Court's decision in Austin. See The Supreme Court, 1992 Term - Leading Cases, 107 Harv.L.Rev. 144, 212-3 ('93) ('1992 Term'). It made punishment the focus of attention. For purposes of the Excessive Fines Clause, 'the question is not . . . whether forfeiture . . . is civil or criminal, but rather whether it is punishment.' Austin, 113 S.Ct. at 2806.
The Court recognized that, like in personam punishments, in rem forfeitures also punish the property owner. Id. at 2812. As a result, 'the focal elements of a proportionality test--the severity of the claimant's offense and the worth of the forfeited property--become relevant to in rem forfeitures as well.' 1992 Term at 213. Only by adding proportionality test is the 'excessiveness' of the fine determined by weighing both the in rem and in personam punishments against the seriousness of the crime. See U.S. v. Littlefield, 821 F.2d 1365, 1368 (9th Cir.'87); U.S. v. Busher, 817 F.2d 1409, 1415 n.10, 1416 (9th Cir. '87). While to many one's liberty is more precious than one's property, all would concede that a deprivation of both is worse than the loss of either alone.
Second, because the punishment in personam is fixed by statute and sentencing guidelines in many instances, it is fines that must not be 'excessive.' It is 'difficult to imagine, apart from a wholly arbitrary `ceiling' figure, how a fine could ever be found `excessive' without some analysis of the relationship between the penalty and the offense for which it is imposed.' In addition, the Excessive Fines Clause should be read to employ a proportionality standard as does the Supreme Court's interpretation of the Excessive Bail Clause, in which the Court reads 'excessive' to require proportionality between the amount of bail and the 'interest the Government seeks to protect,' i.e., the risk of flight. U.S. v. Salerno, 481 U.S. 739, 754 ('87); see also 1992 Term at 211; Eaddy, supra, at 722.
Third, and most persuasive, the majority in Austin specifically refused to endorse Justice Scalia's instrumentality test as 'the sole measure of an in rem forfeiture's excessiveness.' 113 S.Ct. at 2815 n.15. Rather, the Court suggested that other factors were also relevant: 'We do not rule out the possibility that the connection between the property and the offense may be relevant, but our decision today in no way limits the Court of Appeals from considering other factors in determining whether the forfeiture of Austin's property was excessive.' Id.
Fourth, the Court's decision in Alexander v. U.S., 113 S.Ct. 2766 ('93), suggests that a proportionality test under the Excessive Fines Clause may be required. In Alexander, the Court considered the defendant's Eighth Amendment challenge to criminal forfeiture of his adult bookstores and theaters resulting from his conviction for RICO violations. The Court remanded the case for an analysis under the Excessive Fines Clause, finding that the court
of appeals had failed to distinguish between the defendant's excessive fines claim and his claim under the Cruel and Unusual Punishments Clause: '[T]he court lumped the two together, disposing of them both with the general statement that the Eighth Amendment does not require any proportionality review of a sentence less than life imprisonment without the possibility of parole. But that statement has relevance only to the Eighth Amendment's prohibition against cruel and unusual punishments.' Id. at 2775. The Court did not explicitly state that proportionality review was required under the Excessive Fines Clause, but its direction to the court of appeals on remand implied as much: 'It is in the light of the extensive criminal activities which petitioner apparently conducted through this racketeering enterprise over a substantial period of time that the question of whether or not the forfeiture was `excessive' must be considered.' Id. at 2776.
Finally, proportionality analysis is especially appropriate in the civil forfeiture context because it is the sovereign that profits from such forfeitures. Scalia recognized this when he stated: 'There is good reason to be concerned that fines, uniquely of all punishments, will be imposed in a measure out of accord with the penal goals of retribution and deterrence. Imprisonment, corporal punishment and even capital punishment cost a State money; [whereas] fines are a source of revenue. . . . [I]t makes more sense to scrutinize governmental action more closely when the State stands to benefit.' Harmelin v. Michigan, 501 U.S. 957, 979 n.9 ('91) (Scalia, plurality opinion).
All assets seized by the Department of Justice go into its Asset Forfeiture Fund, which the Attorney General is authorized to use for law enforcement purposes. 28 U.S.C. S 524(c). This incentive enhances the need for close scrutiny of in rem forfeitures.
Forfeitures, in effect, impose an impressive levy on wrongdoers to finance, in part, the law enforcement efforts of both the state and national governments. To that end, and to that extent, crime does pay. For this very reason, the judiciary, both state and federal, should be alert to detect constitutionally proscribed injustices imposed on individual wrongdoers.
In sum, the consensus seems to be that a proportionality approach is appropriate to determine whether an in rem forfeiture, proper under an instrumentality test, violates the Excessive Fines Clause. See Hall Street, 853 F.Supp. 1399; accord U.S. v. One Parcel of Real Estate..., 872 F.Supp. 968, 973 (S.D.Fla.'94).
In determining proportionality, a court, bearing in mind any in personam punishment of the owner, should consider, inter alia, the following factors in determining the harshness of the forfeiture: (1) the fair market value of the property; (2) the intangible, subjective value of the property, e.g., whether it is the family home; and (3) the hardship to the defendant, including the effect of the forfeiture on defendant's family or financial condition.
The owner's culpability is also relevant because it is the owner who is punished by the forfeiture. Zumirez Drive, 845 F.Supp. at 736; see Austin, 113 S.Ct. at 2810-1. The culpability of the owner should include consideration of the following factors: (1) whether the owner was negligent or reckless in allowing the illegal use of his property; or (2) whether the owner was directly involved in the illegal activity, and to what extent; and (3) the harm caused by the illegal activity, including (a) (in the drug trafficking context) the amount of drugs and their value, (b) the duration of the illegal activity, and (c) the effect on the community.
'The extent of the Government's financial stake in drug forfeiture is apparent from a 1990 memo, in which the Attorney General urged U.S. Attorneys to increase the volume of forfeitures in order to meet the Department of Justice's annual budget target . . . .' Good, 114 S.Ct. at 502 n.2. The 'war on drugs' has resulted in an enormous increase in federal asset forfeitures in the last decade. The federal government's annual net gain from all types of forfeitures grew from $27 million in 1985 to $531 million in 1992. Between 1985 and 1993, the Department of Justice seized $3.2 billion worth of assets. These assets include 'homes, land, businesses, currency, cars, planes, yachts, and livestock.' Pollack. State and local governments also benefit from federal forfeitures. In recent years, the Department of Justice has transferred $1.2 billion in cash and property to over 3,000 state and local agencies. The most recent GAO estimate ('92) puts the federal government's total forfeiture inventory at $1.9 billion. Civil forfeitures are thus a substantial source of revenue for both federal and local governments.
IV. OPPOSITION
The following is a presentation of opposition as related to the Plaintiff’s Complaint for Forfeiture in Rem. My opposition will reference the Plaintiff’s Complaint by paragraph number.
7. The Plaintiff alleges that defendant Piper was used in the commission of a violation of 8 U.S.C. § 1354(a). “De Jesus” opposes this allegation because 8 U.S.C. § 1354(a) clearly states, “Any person who, knowing or in reckless disregard of the fact…”
“De Jesus” has not violated this statute because “De Jesus” has not knowing or in reckless disregard violated law.
9. The Plaintiff states that “security and law enforcement personnel at the Santa Monica Airport had become suspicious of the activities of De Jesus, based on numerous instances during which he was observed flying the defendant Piper out of the Santa Monica Airport without passengers and returning several hours later with numerous passengers who appeared to be illegal aliens, possibly from Mexico. In each instance, De Jesus would arrive with his passengers at Santa Monica Airport and off load them into a vehicle, driving them away from the airport.”
I am an Airline Transport Pilot with Commercial ratings. Almost every commercial flight operating out of Santa Monica Airport flies its passengers on a one way trip. This is nothing unusual and any commercial pilot and fixed based operator would testify to that fact. The normal method of leaving Santa Monica Airport is by vehicle. Anything to the contrary is unusual. The Plaintiff makes its statement as if it were something illegal or unusual at best. Furthermore, I have, in every occasion, filed an FAA IFR Flight Plan with the Southern California Air Traffic Control. My flights are monitored, radar tracked and recorded. None of my flights have ever been outside of the United States. FAA Federal Aviation Regulations require that a pilot land at a United States port of entry after having landed outside of the United States. I am familiar with all of the Federal Aviation Regulations that govern my flights and I have not broken any of them. My fellow pilots and FAA officials know me to be a meticulous flyer, one who adheres to the Federal Aviation Regulations without compromise.
It is interesting that the Plaintiff refers to the passengers as having “appeared” to be illegal aliens. I would like to ask the Plaintiff what an illegal alien looks like. The only way an undocumented alien can be positively identified is through the verification of documents, not by looks. This is a point that I have opposed, since I am involved in a close-knit Hispanic community.
Furthermore, the Piper aircraft had been down for maintenance for approximately two years. I am interested in knowing where the Plaintiff’s “numerous” occasions fit in. From approximately April 2003 through September 2003, maintenance ferry flights have been flown between Long Beach, Santa Ana and Chino airports. Almost on every occasion, I have left Santa Monica Airport alone and have asked friends or family members to pick me up at the above mentioned airports where I would leave the aircraft during its maintenance. After the maintenance had been performed, they would again drop me off at the above-mentioned airports and I would return with as many passengers as I could, most of which are Hispanic. I am deeply involved within the Hispanic community where I mentor the youth and have taught classes. It is a joy for me to be able to share the joy of flying with others, thus inspiring them to set high goals for themselves. On every occasion, the owners of the aircraft maintenance companies, ground personnel and flight operations have witnessed this and will give testimony to this fact.
Santa Monica Airport Police have on several occasions have stopped me while within Santa Monica Airport while preparing to fly out with passengers. All of whom would appear to be Hispanic. In fact, they were all students from Beverly Hills High School and neighbors. When I questioned the officers as to why they were questioning me, they told me that I looked suspicious. I responded that the only suspicious aspect was that we are all brown-skinned. It is interesting that the Plaintiff only mentions flights returning with passengers but conveniently failed to mention the flights leaving Santa Monica with passengers. This I believe is intentional with the motive of deceiving the court. On many occasions, as I would gather the young people of the schools and churches to encourage them about the joys of flying, we would all go the Airport to wash the airplane. Many witnesses, including other pilots, airport personnel and Santa Monica Airport Security would witness this. In return for helping me wash the airplane, I would offer them a ride. It is interesting that the Plaintiff would say of them “appearing to be illegal aliens.” Leo Iniguez of Santa Monica Airport security has also witnessed this. I personally have observed him with a disgruntled face upon seeing the kids. He himself is Hispanic, but it is obvious that he tries to deny his heritage. He has been part of the Santa Monica Airport Security for many years and could possibly feel the need to ingratiate himself with the Santa Monica Police Department in order to get a position. It has been a well-known fact that he has wanted to enter the Police force for several years. On one occasion, after having landed from a flight from Catalina Island, while my passengers (approximately 6, all of which are Hispanic) were deplaning at Supermarine (a flight operations center at Santa Monica Airport), one of the ground crew (from whom I can get testimony) approached me and told me that Leo was interested in bringing illegal aliens and wanted to know if I knew anyone who could help. I told him that I did not know. I told him to tell Leo that besides it being against the law, it was also dangerous. Someone in his position should not be considering transporting illegal aliens.
10. The Plaintiff states that “Iniguez called a Santa Monica Police Department detective, John Judson (“Hudson”), and informed him that the “alien smuggler” was back with passengers. The Santa Monica Police Department, in conjunction with the…INS and Santa Monica Airport security, had been investigating De Jesus’ activity.”
It is interesting that Iniguez would qualify his statement to Hudson by calling me an “alien smuggler” when I do not have any knowledge or connection with alien smuggling. His comment was malicious and misleading, with the intent to ingratiate himself with Santa Monica Police Department for personal gain. His motive would be to acquire a position on the Santa Monica Police force. I am curious what the outcome of their investigation could be. Is it possible that everyone with whom they have spoken could only attest to my integrity? If so, why don’t they mention it?
12. “Hudson conducted a vehicle stop on the Expedition which had an expired registration tag (March 2003) and had violated security measures pertaining to the airport facility.”
Hudson’s vehicle stop was illegal in the first place. He did not stop me for expired registration tags nor did he mention it when he stopped me. The Plaintiff’s statement is false. I have proof of payment for registration tags in March 2003 for the Expedition.
Aircraft owners are given an electronic card with which to enter the airport at strategic entrances. It is airport policy for one entering and exiting these gates to wait until the gates have closed before continuing. The gate which I exited was not a gate accessed by pilots with their electronic cards; rather, it is a gate that for passengers and crew who do not necessarily have electronic cards. The gate is monitored by Supermarine and had personnel present outside the gate monitoring the parking. This gate does not require a pilot with an electronic card to wait until closure, nor was there a sign posted. I was aware that Hudson was right behind me, it thus became his responsibility to wait for the gate to close if it had been a requirement. He did not wait.
13. “De Jesus admitted that Agustin and Hernandez boarded the defendant Piper at Montgomery Field and had each paid him $300.00 for the flight to Santa Monica. De Jesus indicated that his passengers intended to catch a commercial flight from Los Angeles to Philadelphia…Hudson told De Jesus that it seemed unusual for someone to fly from San Diego to Santa Monica… De Jesus appeared increasingly nervous and said that he did this all the time. De Jesus stated that a friend in San Diego frequently has him travel to San Diego and pick up passengers for flights to Santa Monica.”
The Plaintiff will use words such as “admitted” to misguide the court as if to appear that I were giving an admission of guilt. This is not the case. The Plaintiff has discredited himself with the false statements made here and throughout the document. I explained to Michael Dalto on many occasions, some of which were probably recorded and can be verified by listening to the recordings, that this flight was presented to me as a medical emergency involving a baby in distress in Santa Ana and whose parents were in San Diego at the moment. I never received money from anyone nor did I have the intention of charging. The false statement, written by the Plaintiff, states that I received 300.00 from the two passengers. This is not true. I was thoroughly searched; my vehicle, aircraft and home were also searched for hours. Three Federal agents were present, including Michael Dalto, along with what seemed to be an army of Santa Monica police. If I had received money from anyone, the law enforcement personnel would have found it. This false statement has the malevolent intent to further their cause of malicious prosecution, illegal material gain and unjust enrichment.
The interaction between Hudson and me was very brief. Hudson asked me for my driver’s license. He did not ask me for registration or insurance. He informed me that he had stopped me because I did not wait for the Airport gate to close. I never told Hudson that my passengers were going to Philadelphia. I told him that they informed me that they lived in Philadelphia. The only thing that I knew was that they had a baby at home in Santa Ana that needed emergency attention that required their presence. This was the purpose of my flight. This was my priority. Hudson asked me to step outside of the vehicle and to sit on the ground. I remained there in the sun, under Santa Monica Police supervision, in the above 100 degree heat for what seemed to be about 5 hours. Hudson never returned to ask questions nor did he inform me as to what he was doing. By this point, I was severely dehydrated, suffering from hyperthermia, heat exhaustion and hunger.
14. “Due to De Jesus’ increasing nervousness, the information provided by Iniguez, and the presence of two non-English speaking passengers who De Jesus claimed to not know and had paid him a fee for their travel, Hudson requested assistance…”
I do not recall being nervous, I do recall suffering from the physical affects of Hudson having me sit on the ground for so many hours in above 100 degree temperatures without water, shade, or food. I was never told why I was being detained. Again, I reiterate that I never charged the passengers any money nor was there an intention to do so. This flight was based on a medical emergency and thus considered an air-ambulance flight.
15. The Plaintiff states that Iniguez arrived and questioned one of the passengers and states that “a companion of De Jesus in San Diego had taken all of their money, a total of $1,800.00.” This is an outright falsehood. Since Iniguez did not provide a sworn statement at the end of the document, I can only assume that the falsehood originates from the Plaintiff who has signed and sworn to these statements at the end of the document. I do not have any “companions” in San Diego.
16. I have absolutely no knowledge of the statements presented in paragraph 16, nor was there any way I could have known. I cannot attest to the veracity of these statements.
17. De Jesus “told the two male Hispanics ‘keep going, you guys know where my plane is parked.’” Once in San Diego, I did not see an ambulance nor did I see an emergency crew. Normally on emergency medical flights, there would be the presence of an emergency vehicle awaiting the arrival of the aircraft. At this point I was concerned because I did not know how to identify my passengers. I questioned the ground crew at the airport facility who was present when a white vehicle entered the airport. The vehicle was probably 100 feet or more away, driving parallel to my position. The vehicle slowed but did not stop nor was there any contact made. I was unable to see inside the vehicle. The windows were rolled up and they appeared to be tinted. I asked the ground crew personnel if that could possibly be my passengers in that vehicle. No words were ever exchanged with the vehicle because of the distance, the windows being rolled up and the unfamiliarity
with the vehicle and persons that might be inside. Yet, the Plaintiff claims that I told them to “keep going, you guys know where my plane is parked.” To make a point in case, the Plaintiff has mentioned in the document that the passengers did not speak English and that words were exchanged in English between the driver and myself; it would have been impossible for the passengers to have understood any words spoken in English. The fact of the matter is that no words were ever exchanged at this point.
The Plaintiff states that “De Jesus…gave the driver of the white pickup a white envelope.” There was never a “pick-up”, nor did I give anyone an envelope. If the same tactics of suggestions and conjectures were used upon the passengers by the Department of Homeland Security as they were upon me, the Department of Homeland Security would have benefited by leading the passengers to answer hypothetical questions to arrive at statements they wanted to hear. The Plaintiff states: “De Jesus asked Agustin and Hernandez where they were from; Agustin said they were from Oaxaca, Mexico. When Agustin asked De Jesus if he was from Oaxaca; De Jesus said he was from Sinaloa.” This again is a false statement. The only question posed to the passengers at this point was to ask if they were thirsty. The rest of the words spoken afterwards were those of me explaining the emergency procedures of the aircraft. I did not ask them where they were from nor did I state that I was from Sinaloa.
18. The Plaintiff states, “De Jesus exited the defendant Piper but noticed a dark vehicle parked near the plane (which was subsequently determined to be Hudson’s vehicle)…De Jesus told Agustin and Hernandez to stay in the plane and asked that Agustin move from the rear seats to the front passenger seat of the defendant Piper.”
That day was a tremendously hot day, over 100 degrees, the aircraft is air-conditioned. For the comfort of my passengers, I exited the aircraft to turn on the engine of my personal vehicle and turn on the air-conditioner so that when they exited they would be comfortable. I also rolled down all of the windows so as to let the heat out of the vehicle. Upon returning to the aircraft, the young lady passenger went and sat in the back seat of the vehicle while I requested the young male passenger to assist me in carrying my flight manuals from the aircraft which were located in the pilot’s compartment.
“While being stopped by the police, De Jesus informed them to tell the police that they were on a trip to Philadelphia and that De Jesus was only taking them to the airport.” This is another false statement. After having gotten into my vehicle and on the way out of the airport, this is when I started to have casual conversation with my passengers. I asked them at this point where they were from. They indicated to me that they lived in Philadelphia for many years. They also indicated to me that they were born in Oaxaca to which I responded that I knew Oaxaca very well and that I had visited on occasion. When Hudson indicated for me to stop, I did so immediately and no further words were exchanged with my passengers.
19. “De Jesus said that he had received a call from a Spanish speaking male named “Jimmy,” who asked whether De Jesus could fly a couple with a nursing baby to Santa Monica, and then drive them to Santa Ana, where they were to be picked up by their family. De Jesus agreed to fly the couple to Santa Monica and drive them to Santa Ana for $300.00 each, and admitted picking up Agustin and Hernandez at Montgomery Field in San Diego. De Jesus provided “Jimmy” with the tail number of the defendant Piper, so that he could identify the airplane for the trip. At the San Diego airport, De Jesus was told by the Hispanic driver that “Jimmy” would call him on his cell phone and let him know where to take Agustin and Hernandez. Based on his training and experience in illegal immigrant smuggling, Vasquez believed that De Jesus intended to drive them to Santa Ana where Agustin and Hernandez would be “bought out” by family members, or released to family after payment of a smuggler’s fee.” This is another false statement. I am appalled at the lack of integrity of the United States Government officials. These interviews were recorded and questions posed on several different occasions including phone interviews that I am sure were recorded. Why would the Plaintiff willfully and deliberately mislead the court with false statements? I was awakened the morning of September 10, 2003 by a phone call by a man who identified himself as Jimmy. I do not recall if he spoke to me in English or Spanish. I am fluently bilingual and transition easily between the two languages. He asked me if I could be at the airport within an hour that he had a medical emergency involving a baby. I have flown numerous medical flights involving many circumstances. His language and use of terms were consistent with the terms used. When I inquired as to the nature of the emergency, he replied that the baby was suffering from some sort of respiratory distress and that the mother was in San Diego. The Plaintiff’s contention that the baby was in San Diego is false. The Plaintiff’s contention that “Jimmy” requested me to drive the passengers to Santa Ana is false. The Plaintiff’s contention that I admitted to agreeing to provide this service for $300.00 each is false. When Michael Dalto asked me how much I was going to charge for the service, I unequivocally told him that we did not discuss a fee. My principle concern was to respond to a medical emergency as quickly and safely as possible. Using conjecture and hypothetical reasoning, Dalto persisted and asked how much would I have charged. I reminded him that this was a medical emergency and that money was not my concern. Dalto continued and persisted by asking the cost I incurred for the flight. I responded that I incurred approximately $600.00 per flight hour for a flight of this nature which includes the operating cost of the aircraft and the fuel and that the total flight time was 1.5 hours round trip. Dalto continued his persistence and inquired by asking that if I were to charge someone for a flight how much would I charge. I explained to him that sharing expenses would probably be appropriate but that charging a fee was not my concern; my main concern was to respond to the medical emergency. He told me that it was unusual for someone to do something for free and that a normal person would charge. I told him at this point that I was different. He asked me how I was different. I told him that my mission was to attend to the sick, feed the hungry, clothe the naked, be the hands of those who could not reach, the eyes of those that cannot see. I told him that my mission is completely different from his. I reach out to the poor and the oppressed. I would like to ask the court to consider that these words are too emphatic for them to have been so conveniently forgotten by Dalto. Even the rocks of earth heard them and would proclaim their truth. Dalto’s insistence that money was involved is malevolent and malicious. Throughout the Plaintiff’s document, the plaintiff equates Hispanic with “illegal alien”, non-English speaking Spanish speaker with “illegal alien”. This is fallacious logic. The plaintiff refers to the driver of the vehicle as Hispanic when in fact they were White and English-speaking Americans. Paragraph 17 of the Plaintiff’s document even states that “they were conversing in English with De Jesus.” I contend that the Plaintiff thus far has displayed racist tendencies, attempting to villainize those who are Spanish-speaking and equating them with “illegal aliens”.
The Plaintiff states that I provided “Jimmy” with the tail number of the aircraft. This is again a false statement. (I would like to bring to the court’s attention the number of false statement that the Plaintiff has provided thus far with malicious intentions. On most of the occasions that I have interviewed with Dalto, he has either recorded the interview or has had witnesses. These discrepancies are inexcusable.) When Dalto asked me how the contact was going to recognize the aircraft, I told him that usually there was an ambulance involved in cases such as these and since they contacted me they could have already known. My aircraft was being advertised in two major aircraft magazines. Nonetheless, I would recognize them by the presence of an ambulance.
The Plaintiff states that the driver said that “Jimmy would call”. No one ever mentioned the name of “Jimmy”, nor did they tell me that someone would call. The Department of Homeland Security monitored the incoming cell phone calls during the whole time that I was being detained. There was also a call history on my handset that they accessed.
The Plaintiff contends that my intentions were to drive the passengers to Santa Ana where they “would be bought out by family members”. I have no knowledge of this. But, why would the Plaintiff make such a contention if the Plaintiff has already contended that the passengers were charged $3,600 in paragraph 16. I emphasize at this point that I do not have any knowledge or involvement in such dealings nor do I know the veracity of the Plaintiff’s statements.
20. “De Jesus said he assumed that his passengers were Americans since they were in the United States, even though he conversed with then in the Spanish language.”
I was sworn as a United States Census Bureau Agent in 2000 and participated in the United States Census collecting and analyzing data. I am familiar with the procedures of the United States Census Bureau. The United States Census Bureau states in its Census 2000 Summary that 28.1% of United States Citizens speak Spanish and 32.8% of a total population of the United States speaks Spanish; that is 47 million people. 10% speak other European languages, 7% speak Asian languages, and 1.9% other languages. That is a total percentage of 47% of the United States population speaking another language other than English. The CIA World Factbook states both English and Spanish as the languages spoken in the United States. Thus it was not unusual to me that my passengers spoke Spanish. The statement by the Plaintiff that I conversed with my passengers in Spanish is not only naïve but also malicious and racist in tone. Any person responding to an emergency would try to communicate as effectively as possible no matter what the language might be. I would like to remind the court that I was responding to what was described to me as a medical emergency. I was certified as an Emergency Medical Technician at Kent State University and am able to recognize when an emergency is being described to me. Requiring a person to speak English before I could respond to an emergency was never a requirement nor is it for any emergency personnel. I have to remind the court that I never charged my passengers nor did I have any intentions of doing so.
21. “De Jesus said that prior to purchasing the defendant Piper, Moskin would allow him to use it. In return, De Jesus would leave an envelope containing money for Moskin in the airplane after he flew in it.” This is a false statement; I never left envelopes containing money for Moskin.
“De Jesus stated that he and Moskin would often fly Hispanic families to different destinations for “Father Mike” who is a priest at St. Anne’s Church in Santa Monica.” I never made this statement. Moskin does not even know Father Mike. The court should realize that the integrity of the Plaintiff has been compromised and that any statements made by the Plaintiff should be questionable and scrutinized. While answering questions about my background I explained to Michael Dalto that I was involved with the church as youth coordinator. I also told him that I taught confirmation and baptism classes. I am also involved in the Detention ministry of the church. I told Dalto that on occasion a flight to Catalina Island was raffled during church festivities as a donation. I am appalled that the Plaintiff would present such falsehoods to the court without reprimand or consequence.
22. “A search of De Jesus’ apartment disclosed that De Jesus was harboring an illegal alien named Ezequiel Chavez Esparza.” Harboring an illegal alien is hardly an appropriate description since the word “harboring” carries the connotation of hiding someone from detection. I clearly stated to Dalto that Ezequiel was my brother and that I raised him since he was a minor. Dalto asked me why I had never submitted an application for residency for him and I responded that I did on several occasions beginning since about 1990. We never received a response on any of the occasions.
“De Jesus referred to Esparza as his roommate.” This is another false statement by the Plaintiff. There are no roommates living in our home, only family. The Plaintiff also states that I “received $150.00 per month from him (Esparza) for expenses.” This is another outrageous falsehood; so far I have lost count. When Dalto asked me if my brother paid me for rent, I told Dalto that I did not charge my brother. Dalto found this fact to be strange since nobody does anything for free. I told him that the money my brother earns is used to support family. Dalto insisted that my brother must give me something. I told Dalto that my brother pays about 150.00 for his telephone. This money does not come to me however. My brother has a phone in his name and he pays for his telephone bill that is in his name and has been so since the early 1990’s, possibly since as early as 1991. Most of the times I pay his bill for him in order for him to have more money to support the family. I explained to Dalto that my brother’s wife had recently lost a child during pregnancy.
I have no knowledge of my brother’s alleged deportation or any previous knowledge of his alleged use of fictitious documents.
23. “Further investigation by ICE Special Agent Dalto revealed that De Jesus had been suspected of using the defendant Piper to smuggle illegal aliens on numerous prior occasions.” I reiterate that I am not involved in any smuggling activity of any kind. The Plaintiff purports in paragraph 23(a), 23(b) and 23(c) that the Defendant Navajo flew on May 8, 1998, on May 11, 1998 and on June 3, 1998. Maintenance records, which can be provided by the FAA Certified Aircraft Maintenance Facility, show that the Piper Navajo was undergoing an extensive FAA Annual Inspection and Maintenance during this time. Even though I do not have any knowledge of the events described within the aforementioned paragraphs, I would like to bring to the attention of the court some discrepancies and questionable statements made by the Plaintiff. First of all, it would have been extremely unusual and difficult for me to make flights during office hours on these dates. I was employed as Director of Finance. Secondly, Santa Monica Airport is a secure airport and a vehicle waiting on airport property would have been impossible. The Plaintiff states that “Investigators followed the Grand Prix to an area off the 10 freeway at the Del Mar exit.” After a diligent search on maps, the internet, Mapuest and Yahoo Maps, I was unable to find such an exit. I would like to bring to the court’s attention that the Plaintiff again insists on correlating the word “Hispanic” with the words “illegal aliens”; this is a travesty to do so within a Democratic nation such as the United States. The next thing we will know is the Plaintiff wanted Hispanics to wear yellow badges of Stars of David. Maybe we should change the name of Department of Homeland Security to Gestapo, since it is reminiscent of Nazi Germany.
In paragraph 23(b) the Plaintiff states that someone “believed to be De Jesus” exited the airplane, walked toward the flying services building and talked “on a cell phone.” Records will show that my cell phone service did not begin until December 1999. I need to emphasize that I have no knowledge of the events the Plaintiff described in paragraphs 23(a), 23(b), 23(c) or 23(d). The veracity of the Plaintiff’s comments is also suspect; and there are no sworn statements at the end of the document to support the statements by the persons making the observations. Also notice the expressed doubt of the statement “believed to be De Jesus”.
23(e). “On July 2, 1998, Santa Monica Airport security officer John Grammatico observed the defendant Piper land at about 10:54pm. As the airplane was taxiing to park, Grammatico smelled burning oil, and followed the airplane to its tie down space. Grammatico saw that De Jesus had four Hispanic passengers who did not speak English, had no identifications and were believed to be illegal aliens. When Grammatico asked for the passengers’ names, dates of birth and address, De Jesus stated ‘they are staying at my address.’” This was the very first flight after the extensive FAA Annual Inspection and Maintenance performed by the FAA Certified Inspection and Maintenance Facility. This is why the Plaintiff’s allegations of the previous paragraphs are suspect. The Plaintiff also fails to indicate to the court that the flight originated in Santa Monica Airport and that the passengers I was carrying were High School students. The FAA Inspection and Maintenance occurred over the course of several months and I was the first to fly the aircraft after the FAA Inspection, which was signed off by the FAA Inspection and Maintenance Facility. I filed an FAA flight plan with the FAA which includes information concerning my passengers. My entire flight was monitored and recorded by the Santa Monica Control Terminal, Los Angeles Departure Control, the Southern California Terminal Radar Control Facility and the Los Angeles Approach Control. As the Los Angeles Approach Control was giving instructions for a routine course change to line me up for approach back into Santa Monica and cleared me for a descent, there was a loud explosive sound off my left wing. The plane rolled abruptly to the left and lost approximately 2,000 feet of altitude. I looked out the pilot’s window and saw that the cowling of the left engine had ripped off and that the engine hoses were spewing oil. After having recovered the aircraft, I contacted Los Angeles Approach Control who cleared me for an immediately landing at Santa Monica Airport. The Santa Monica Airport Facilities were contacted to prepare for my approach in case emergency assistance was needed. Grammatico was the one to greet the aircraft after I performed a safe landing. His comment to me was “this is the most exciting day of my career.” Having witnessed an emergency landing and having seen the extensive damage incurred by the aircraft, I understood his sentiments. The Plaintiff states: “Grammatico saw that De Jesus had four Hispanic passengers who did not speak English, had no identifications and were believed to be illegal aliens.” The fact of the matter is that Grammatico never addressed my passengers. He would not have known if they were English-speaking or not. Considering that they were High School students, it is obvious that they did. The Plaintiff states that they did not have identifications. This is another false statement presented by the Plaintiff. I ask the court to notice how the Plaintiff uses the passive tense to state that they “were believed to be illegal aliens.” The Plaintiff has tried to persuade the court’s opinion by equating terms such as Spanish-speaking and Hispanic to “illegal alien”. This cannot happen in America. America also consists of people who are Non-White Americans. And the Plaintiff’s insistence has gone too far and violates constitutional rights, which by the way I would like to remind the court that Dalto insists no longer exist. As the captain of the aircraft, I have the ultimate responsibility and authority of the ship. When Grammatico inquired as to the names and addresses of the kids, I knew that security personnel did not have the authority to request information without first contacting the parents of the kids to protect their privacy. The FAA already had information regarding my passengers. I did, however, state that he could use my address for reference. He already had my information.
24. “A subsequent review of INS files revealed that De Jesus had been arrested in 1987 for illegal alien smuggling.” Review of court documents will demonstrate that I was not involved in alien smuggling. A Federal Judge ruled that the contentions recorded in the INS files are false. I was released by the Federal Court and charges of alien smuggling dismissed. The Plaintiff is aware of this but has failed to reveal this information to the court. The Plaintiff states that agents had discovered “five suspected illegal aliens lying down on the van’s floor…De Jesus walked up and indicated that he owned the van.” This is a false statement made by the Plaintiff. I was in San Diego searching for my godsons, both of which were minors. I was on foot and in an area that is well transited and close to major fast food restaurants and other commercial businesses as well as two major freeways. The Plaintiff paints the picture as if I were in some clandestine area or desert. From far off, I noticed Border Patrol Agents man-handling my godchildren. They were not in any vehicle. I immediately approached them and asked them what the problem was. They asked me if I knew them. I responded that I did. There were not five individuals as described by the Plaintiff; there were only my two godchildren. I was never asked if I was the owner of a van, I only indicated that I knew my godchildren. The officers hand-cuffed me and took me into custody until I saw a federal judge, who subsequently dismissed the charges. The Plaintiff states: “Indeed, De Jesus admitted that he knew both his friend and his brother were undocumented aliens.” Certainly I did not admit to anyone that I knew that they were undocumented aliens. This is a falsehood stated by the Plaintiff.
V. CONCLUSION
I contend that the Plaintiff has demonstrated tendencies towards White-supremacy doctrines. Throughout the document provided by the Plaintiff in the Complaint for Forfeiture in Rem, the Plaintiff villanizes the Hispanic community by equating them to “illegal aliens”. I have given verifiable documented information provided by the United States Census Bureau showing statistics of the Hispanic community within the United States. While questioning Special Agent Michael Dalto as to why the focus on Hispanics and not white Americans, he told me in no uncertain terms that white people have money. When I challenged him as to the constitutionality of his statement, he denied the existence of the constitution. This is a serious matter. Dalto is an agent of the United States government and has sworn to uphold justice and the constitution of the United States, both of which he has denied. After having come to my home for a second time without a warrant and again having searched it, he left saying that he was going to get me on something, that he was like Columbo and was going to get me on something. I responded to him by welcoming his investigations, I have been 100% cooperative in his efforts from the very beginning. Dalto’s comment and his tone, however, concerned me because I sensed that he was determined not to loose, no matter what it takes, even if it takes fabricating information, witnesses or evidence. On one occasion I expressed to him my concern and asked him why he was focusing so much on innocent citizens and wasting valuable resources that should be concentrated on the fight against terrorism. This is the reason that the Department of Homeland Security was created. I told him of my concern that he wanted to steal my aircraft. By doing so, he would be able to justify the time and resources spent by liquidating my aircraft. The Plaintiff is violating my Constitutional rights by violating Amendment VIII. I have suffered an initial loss of revenue of approximately $10,000 per month with a forecasted business growth of approximately 5% per month. Likewise, the Plaintiff is allowing for the devaluation of my aircraft. On several occasions I expressed to Special Agent Michael Dalto, the importance of running the engines on the Piper Navajo. The engines alone have a cost of approximately $80,000 per engine. I also expressed to him on several occasions the importance of fuel being pumped through the fuel lines to keep them lubricated; otherwise the fuel lines will crack. On all occasions, my pleas were ignored. This comprises negligent acts on the part of the Plaintiff. Still on another occasion, he indicated to me that he was going to break open the door of the aircraft. I advised him that the Piper Navajo is a pressurized aircraft and that breaking the door was not advisable. He then told me on the subsequent phone conversation that he was he was going to re-key the door. I advised him that any work that is done on the aircraft, by FAA Regulation, must be done by an FAA Certified Mechanic. Due to the lack of diligence of the Plaintiff, the aircraft was grounded by the FAA due to evidence of an extreme fuel. The engines will soon deteriorate, again due to the lack of diligence of the Plaintiff. This again violates my 8th Amendment rights.
The Plaintiff was required by Federal Statute to return my aircraft and the Plaintiff deliberately and willfully ignored Federal law. Due Process was not served, thus violating my 14th Amendment rights.
Also there is a related case demonstrating that there is a conspiracy of federal agents and the Plaintiff showing:
(1) the existence of an express or implied agreement among the Plaintiff to deprive someone of constitutional rights, and
(2) an actual deprivation of those constitutional rights resulting from the agreement. The “BIVENS ACTIONS” allows for Damages remedies for constitutional violations committed by federal agents and became available in 1971. However, it was not until the Court's decision in Bivens v. 6 unknown named federal agents 403US388, 91SCT1999, 29LE2d 619(1971) that a violation of a specific constitutional amendment by a Federal employee was recognized as a cause of action for monetary damages. In the case of Bivens vs. six employees of the US Department of Justice, the Plaintiff alleged that Federal Agents had arrested him and searched his home without a warrant or probable cause in violation of the 4th amendment's ban against unreasonable searches and seizures. The Court upheld the reasonableness of the complaint in the face of a motion to dismiss for failure to state a cause of action. They rejected the argument that a State Tort action provided an adequate and exclusive judicial remedy.
It is the Interested Party “De Jesus”’s contention that the above two acts have occurred. Furthermore, 28 USCS § 1346 (2004) provides that:
(b) (1) Subject to the provisions of chapter 171 of this title [28 USCS §§ 2671 et seq.], the district courts, together with the United States District Court for the District of the Canal Zone and the District Court of the Virgin Islands, shall have exclusive jurisdiction of civil actions on claims against the United States, for money damages, accruing on and after January 1, 1945, for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.
Moreover, the Interested Party “De Jesus” contends that the Plaintiff has committed intrinsic and extrinsic fraud along with other wrongful acts. The Plaintiff has submitted to the court, a statement that is misleading, conspiratorial and filled with error and conjecture. In a single word, the statement that is false. The Plaintiff has signed this document under penalty of perjury with the express intention of misleading the court, which constitutes the commission of intrinsic fraud. The Plaintiff has fraudulently kept the Interested Party “De Jesus” from accessing information and obtaining evidence that would further the Interested Party “De Jesus”’s cause and seeking justice, thus constituting extrinsic fraud. Given that the Department of Homeland Security has a history of placing false statements within its documents to further its position, an act which I have personal knowledge and which can be substantiated by evidence, this makes my plea for justice all the more urgent. The Department of Homeland Security has a history of violating the constitutional rights of the inhabitants of this land as well as sidestepping the safeguards of the constitution. I further contend that the Plaintiff has committed Fraud and Abuse of Process as well as intentional and negligent infliction of emotional distress.
The Plaintiff has ignored the following federal codes:
Section 274.1 (8 U.S.C. 1324) (h) (2) describes the date of an action to be the date of postmark if filed by mail.
Section 274 (8 U.S.C. 1324) (b) (1) states:
(A) That no conveyance used by any person as a common carrier in the transaction of business as a common carrier shall be forfeited unless it shall appear that the owner of other person in charge of such conveyance was a consenting party or privy to the illegal act. (The Interested Party “De Jesus” was not a consenting party or privy to an illegal act.)
Section 274.1 (8 U.S.C. 1324) (o) The term “record” means an arrest for a related crime followed by a conviction, except that a single arrest and conviction and the expiration of any sentence imposed as a result of the conviction, all of which occurred more than ten years prior to the date a claimant acquired a property interest in the seized or forfeited conveyance, is not considered a record. Also related 28 CFR Part 9.2 (q). (The Interested Party “De Jesus” does not have a record).
Section 274.5 (8 U.S.C. 1324)(c)(2,3) The owner of a seized conveyance shall be informed of the right to request a personal interview with an immigration officer and to present evidence to establish;
(2) That the conveyance is not subject to forfeiture; or
(3) That the conveyance was used in an act to which the owner was not privy, or did not consent, and the owner took all reasonable steps to prevent the illegal use of the conveyance (The Interested Party “De Jesus” requested and attended a personal interview with the Department of Homeland Security and provided overwhelming evidence of Interested Party “De Jesus”’s claim).
Section 274.6 Proof of property interest (Provided by Interested Party “De Jesus”).
Section 274.8 Notice to owner and lien holder of seizure.
One hundred sixth Congress of the United States of America on January 24, 2000 states:
§ 983 (a) (1)(A)(i) In any nonjudicial civil forfeiture proceeding under a civil forfeiture stature, with respect to which, the Government is required to send written notice to interested parties, such notice shall be sent in a manner to achieve proper notice as soon as practicable, and in no case more than 60 days after the date of seizure. (The Plaintiff denied the Interested Party “De Jesus” due process by exceeding this limit).
§ 983 (a) (1) (F) (i) If the government does not send notice of a seizure of property in accordance with subparagraph (A) to the person from whom the property was seized, and no extension of time is granted, the Government shall return the property to that person without prejudice to the right of the Government to commence a forfeiture proceeding at a later time (Again the Plaintiff denied the Interested Party “De Jesus” due process by not obeying this statute).
§ 983 (a) (3)(B) The Government shall promptly release the property pursuant to regulations promulgated by the Attorney General, and may not take any further action to effect the civil forfeiture of such property in connection with the underlying offense.
§ 983 (f) Release of Seized Property (3)(A) If not later than 15 days after the date of a request under paragraph (2) the property has not been released, the claimant may file a petition in the district court in which the complaint has been filed or, if no complaint has been filed, in the district court in which the seizure warrant was issued or in the district court for the district in which the property was seized (By this statute the Interested Party “De Jesus” challenges the Plaintiff’s argument that the Civil In Rem Forfeiture Action is the exclusive forum for addressing the Interested Party “De Jesus”’s complaint).
The Interested Party “De Jesus”’s complaint was initiated before the Plaintiff’s In Rem Forfeiture Action and thus takes precedence. The Plaintiff states that “Equity always has been hesitant to act if its remedy would disrupt an ongoing grand jury investigation.” The only way Justice could disrupt is if there is Injustice to be disrupted. The Plaintiff mentions an ongoing grand jury investigation. The Interested Party “De Jesus” has not knowingly or intentionally been involved in any criminal activity. Besides, on several occasions, I have notified Michael Dalto that I was consulting with lawyers, those of which called AUSA Bonnie Hobbs who has denied her knowledge of any criminal accusations, and yet Dalto continued to contact me. Obviously the Plaintiff’s responses to my lawyers were also false. The Plaintiff had the obligation of returning the aircraft on two separate occasions, as mentioned above, and failed to do so, violating the Interested Party “De Jesus”’s right under the federal law and the Constitution. The value of the aircraft has diminished enormously due to the lack of the Plaintiff to follow federal code. The aircraft is not subject to forfeiture because the Interested Party “De Jesus” did not violate 8 U.S.C. §1324(a)(1)(A)(ii) by knowingly or in reckless disregard of the fact that an alien has come to, entered, or remains in the united States in violation of law.
The Plaintiff violated federal code by not returning the aircraft to the Plaintiff as prescribed by 18 U.S.C. §983(a) (1) (F) which states, “If the Government does not send notice of a seizure of property in accordance with subparagraph (A) to the person from whom the property was seized, and no extension of time is granted, the Government shall return the property to that person without prejudice to the right of the Government to commence a forfeiture proceeding at a later time. The Government shall not be required to return contraband or other property that the person from whom the property was seized may not legally possess.” In short, the Plaintiff is set on stealing the Interested Party “De Jesus”’s property.
There is overwhelming evidence that the Plaintiff is racial profiling, something that has no room within the United States of America. It is obvious that the Plaintiff is biased against Hispanics by the clear use of terms within the Plaintiff’s document and also by the expressed words of Special Agent Michael Dalto.
I received a phone call from an office of the Archdiocese of Los Angeles asking if I could fly members of a retreat team to Phoenix. Realizing that most of the members are Hispanic, I contacted Michael Dalto on two occasions asking him, if I was required by law to ask for documents before the flight. On both occasions he failed to answer my question. As a pilot, I am governed by FAA Regulations, all of which I have diligently fulfilled. While consulting with my peers, other emergency personnel, and MEDIVAC crew members, all of them stated that they would have also responded to an emergency without regard of race, color, creed, national origin, language spoken, etc. This follows our constitution, that which the Plaintiff is so intent on denying. Having spoken with the Director of Critical Care Transport, he indicated to me that (1) there is a moral duty to respond to a described emergency, (2) Actions taken must be consistent with other reasonable persons responding to an emergency, (3) Action must be taken to avoid further injury, (4) Actions, or lack thereof, must not further contribute to an injury. After having described to him my circumstances, he indicated to me that my actions were reasonable and prudent considering the information that I was given and that any other any other reasonable person responding to like circumstances would have done the same.
One suggestion I made to Michael Dalto was that if the Department of Homeland Security is really concerned about security in the airports, there should be some sort of seminar or classes available to general aviation pilots. Since pilots are governed by the Federal Aviation Administration Regulations, there are absolutely no requirements within the Regulations that require a pilot to be suspicious of Spanish speakers or to request documentation before a flight that originates and terminates within the United States. This is a fact that every pilot will attest to. This is a fact the FAA will attest to. The FAA Regulations require a pilot, who travels outside of the United States and returns, to land first at an airport of entry to pass through customs. I have never traveled outside of the United States in my aircraft.
My hands are clean and my heart and conscience are clear. This is more than I can say for the Plaintiff and those who have perjured themselves and borne false witness. There is a higher law that says: “Thou shalt not bear false witness.”
Being that the Plaintiff has the motive of material gain and unjust enrichment, and that Leo Iniguez (the main informant) would stand to gain by a promotion, and being that the Plaintiff has clearly demonstrated racist tendencies, and by the preponderance of the overwhelming amount of false and misstatements written by P. Greg Parham and sworn to by Special Agent Michael Dalto with the intention of misleading the court, it stands to reason that the Plaintiff has conspired to construct the forgoing events. It seems to me unusual that the person who initially contacted me about the emergency never again contacted me. It also seems unusual to me that an officer would be inquiring to request a flight to transport undocumented aliens with one of the line crew personnel. The Plaintiff has admitted that they have been working closely with the Santa Monica Airport Security. It stands to reason that they all conspired to set up a flight and circumstance, especially on the anniversary of September 11th. The Plaintiff was eager to date their documents with the date of September 11th as opposed to September 10, 2003. Members from both the House of Congress and the House of Senate are investing the Department of Homeland Security because of the abuses mentioned above. How can a government which has fought against apartheid, ethic cleansing and fascism resort to those very things that it once despised? This is a matter to which the American people cannot close their eyes.
Based on the above, and considering that the defendant Piper was not used in the commission of a violation of 8 U.S.C. §1324(a) bringing in and harboring certain aliens, The defendant Piper is therefore not subject to 8 U.S.C. §1324(b).
WHEREFORE, I pray that due process issue the release of the defendant Piper Navajo to the owner. In the event that the court decides not to release the defendant Piper Navajo to the owner, then steps should be taken to release the defendant Piper Navajo to the lienholder of record who is an innocent interested party. In the event of the denial of both, then I request a stay of the proceedings considering that the Plaintiff has indicated that there is an on-going investigation that could possibly adversely affect me.
VI. VERIFICATION
I declare (or certify, verify, or state) under penalty of perjury under the laws of the United States of America that the foregoing is true and correct to the best of my knowledge. Any discrepancies or faults in this document are not intentional and would be the result of lack of knowledge and experience in the subject matter.
Executed on June 14, 2004 by:


Juan David De Jesus
CERTIFICATE OF SERVICE
I Juan David De Jesus, hereby certify that on this 14th day of June, 2004, a copy of the foregoing Answer to Plaintiff’s Complaint for Forfeiture in Rem was faxed to the following and sent by United States mail to the following:

P. Greg Parham (Attorney for Plaintiff)
Special Assistant United States Attorney
Asset Forfeiture Section
United States Attorney’s Office
California Bar Number 140310
U.S. Courthouse, 14th Floor
312 N Spring Street
Los Angeles, CA 90012
Telephone (213) 894-0304 Fax (213) 894-7177

Attorney General John Ashcroft
U.S. Department of Justice
950 Pennsylvania Ave NW
Washington DC 20530-0009





Juan David De Jesus
411 N Palm Drive #14
Beverly Hills, CA 90210
(310) 276-1446
(603) 250-7439 fax