This Commission has an opportunity to restructure the federal courts of appeal to prevent appellate judges from aiding and abetting the stealing of private property by judges in the courts below. But first the Commission must be provided with some insight into the existing structure of the federal courts of appeal from the perspective of one who has been abused by the appellate process. This statement of opinion demonstrates that dishonest judges must be removed before any structural alternative can be considered.

SHAM BANKRUPTCY

Dennis Powell, a Salinas attorney, and his client, Ilbert Tucker, planned a sham bankruptcy through the San Jose bankruptcy court. Tucker and his joint venturers were engaged in developing land and building houses in and around Carmel Valley. On September 21, 1976, Tucker admitted bankruptcy and filed schedules of debt and property reporting net debt of $45,912.49. On December 8, 1976, Tucker amended his schedules and reported net worth of $684,792.86 tying his destiny to that of the bankruptcy judge. If Tucker were put in jeopardy, the judge would be put in jeopardy. Although Tucker’s financial position improved by $730,705.35 during three months of bankruptcy, he violated federal law with impunity. The record also shows that in contemplation of bankruptcy, Tucker disbursed over $300,000 and conveyed residences to his parents and four joint venturers. Tucker and his brother, used the funds stolen from creditors to build a 54-unit, $2,000,000 housing project, Quail Ridge, in Atascadero, that had a retail value approaching $5,000,000. In April 1980, Bankruptcy Judge Seymour J. Abrahams wiped out Tucker’s debts by discharging him from bankruptcy, and thereby completed the swindle of Tucker’s creditors. It was a no asset estate. Creditors got nothing. Sham bankruptcies were first reported in the New York Times in 1923. As in other sham bankruptcies, creditors were fraudulently drawn into bankruptcy court where they were victimized by a bankruptcy judge operating under the color of federal law.

Although Tucker had been managing a joint venture, the Tucker bankruptcy ring, including Judge Abrahams, trustee J.M. Dungan of Salinas, and attorneys for the trustee, Harvey Hoffman and William Kelly of San Francisco, administered the estate as a proprietorship. Tucker’s joint venturers were relieved of their obligations to creditors.

I held Tucker’s notes in the amount of $30,000 and $56,000 secured by deeds of trust on three residential properties. I employed David Murray and James Grube of Palo Alto to safeguard my interests. Using a forged contract of sale, attorney Robert Herendeen, Powell’s office mate, claimed one of the properties securing the $30,000 note for Tucker’s tenant, Boebel. The contract of sale memorialized an oral contract of sale that predated the deeds of trust conveyed to me. To validate the contract of sale the trustee filed an action against Boebel that was compromised when Boebel paid $1,200 for the trustee’s quit claim deed. The deed gave Boebel the color of title needed to file a quiet title action against me in state court. Grube concealed the trustee’s action against Boebel from me. I fired him because he connived against me to lose. The second property securing the $30,000 note was sold for $1,000 by a bid sale that was prearranged by Herendeen. Judge Abrahams confirmed the sale by conveyance of a trustee’s quit claim deed to Tucker’s tenant, Robinette. When the quiet title action came on for trial in state court, Judge Harkjoon Paik demanded that I settle for $20,000 or he would retaliate against me if the case was tried. My attorney, Randy Hess refused to try the case. Later Hess revealed that Grube was his former office mate. Thus, as a result of Judge Abrahams’ orders that were supported by other judges, and the connivance of my attorneys against me to lose, my right to acquire the properties securing the $30,000 note was lost.

FEDERAL APPEALS

In 1982, I filed motions to set aside the bankruptcy court’s orders based on extrinsic fraud and properly raised the federal question that our National Bankruptcy Law is unconstitutional. The constitutionality of vesting dual administrative and judicial duties in the bankruptcy judge has been argued outside the courts since 1930. Yet no lawyer had raised the issue in court. Lawyers support our bankruptcy law, because it produces exorbitant legal fees. These fees may be shared with the judge who approves them as reported when District Judge Albert Johnson forfeited all benefits and resigned rather than face impeachment.

  Acting for the Assignment Committee, Chief District Judge Robert Peckham, who appointed Judge Abrahams, assigned my appeals to District Judge Marilyn Hall Patel. She tyrannically affirmed the void orders of the bankruptcy court, falsely ruled the constitutional issue was not raised below and awarded favored parties legal fees and costs. Chief Circuit Judge James Browning dismissed my §372(c) complaint of judicial misconduct against Judge Abrahams, with the concurrence of the Ninth Circuit Judicial Council. However, Judge Abrahams was not reappointed. James Grube, who perpetrated frauds upon the court and connived against me to lose, was appointed Bankruptcy Judge.

I appealed from Judge Patel’s orders to the Ninth Circuit. A three-judge panel denied my appeal, falsely opined that I failed to cite authorities in support of the federal question, and awarded costs to favored parties. I filed a petition en banc that was rejected by the judges of the circuit, including Anthony Kennedy. Then I filed a petition for certiorari requesting supervisory mandamus. Ninth Circuit Associate Justice William Rehnquist abnegated his duty to provide judicial review of a properly raised constitutional issue and denied my petition.

OBSTRUCTION OF JUSTICE

Federal prosecutors have an administrative duty to investigate probable violations of federal law. After investigating, they have discretion regarding prosecution. However, Joseph Russoniello, San Francisco’s U.S. attorney refused to investigate and his action was ratified by Washington. In 1989, I complained against the Attorney General to obtain an order compelling Richard Thornburg to investigate Tucker’s sham bankruptcy. District Judge Thomas Hogan dismissed my complaint ruling, in essence, that he could not order an investigation when the government would not prosecute. A three-judge circuit panel denied my appeal. A petition en banc to the judges of the circuit, including Clarence Thomas and Ruth Ginsberg, was denied review. The circuit judges obstructed justice, and put dishonest judges and prosecutors above the law.

RUTH GINSBERG CONFIRMED

In 1993, Ruth Ginsberg was nominated to sit on the highest court. I opposed her confirmation and provided a copy of the petition en banc that was reviewed by Ginsberg to Guy Molock, the committee’s investigator. After the committee approved Ginsberg, I called Molock. He said, "I did my job. I prepared questions and gave them to Senators Biden and Hatch. No questions were asked." The senators suppressed the questions and concealed that Ruth Ginsberg obstructed justice as circuit judge. Thus, Ruth Ginsberg sits on the highest court because Senator Joseph Biden and Senator Orrin Hatch obstructed justice and violated their oaths to uphold the Constitution.

SHIFTING INTEGRITY

Every judge who reviewed the Tucker bankruptcy put loyalty to Judge Abrahams above his or her oath to uphold the Constitution. These judges ruled in accord with their own will because they were not accountable to a countervailing authority: Chief Justice Warren Burger, Associate Justice William Rehnquist of the Supreme Court; Chief James Browning, Jerome Farris, Arthur Alarcon, William Norris, Richard Chambers, Charles Merrill, Oliver Koelsch, Ben Dunaway, Walter Ely, Eugene Wright, John Kilkenny, Ozell Trask, Herbert Choy, Alfred Goodwin, Clifford Wallace, Joseph Sneed, Anthony Kennedy, Blaine Anderson, Proctor Hug, Thomas Tang, Otto Skopil, Mary Schroeder, Betty Fletcher, Harry Pregerson, Cecil Poole, Warren Ferguson, Dorothy Nelson, William Danby, Robert Boochever, Stepher Reinhardt, Judges of the Ninth Circuit Court of Appeals; Chief Robert Peckham, Eugene Lynch, Marilyn Patel and William Schwarzer Judges of the District Court, Northern California District; members of the Ninth Circuit Judicial Council, Circuit Judges Sneed, Hug, Skopil and District Judges Manual Real, James Fitzgerald, Marion Callister and Robert McNichols; Judge Thomas Hogan of the District of Columbia District Court and Chief Patricia Wald, Laurence Silberman, James Buckley, Ruth Ginsberg, Douglas Ginsberg, Clarence Thomas, Harry Edwards, Stephen Williams, David Sentelle, and Karen Henderson Judges of the District of Columbia Court of Appeals; California State Court Chief Nat Agliano, Harkjoon Paik, Richard Silver and John Phillips of the California Superior Court, Monterey County; Leslie Nichols, Judge of the California Superior Court, Santa Clara County and Chief Eugene Premo, Franklin Elia and William Wunderlich Justices of California’s Sixth Appellate District.

WHO KILLED DEXTER JACOBSON?

To protect dishonest bankruptcy professionals, the Department of Justice created the United States Trustee Program. The system focuses on the trustee in bankruptcy, removing accountability from judges and lawyers. The Trustee Program promotes corruption. In 1989, Charles Duck, a trustee in bankruptcy, was sent to jail for embezzling millions of dollars from estates. The trustee is only a figurehead for the trustee’s attorneys. Yet the U.S. attorney William McGivern took no action against the judge or lawyers who dominated the Santa Rosa Bankruptcy Court. Among these lawyers was Harvey Hoffman. In June of 1990, attorney Dexter Jacobson revealed to reporters of the San Francisco Daily Journal that Bay Area Bankruptcy Courts were poisoned with fraud. In August of 1990, days before he was to meet with law enforcement officials to discuss his complaint against bankruptcy professionals, Jacobson was assassinated. His home and office were ransacked and all traces of his complaint and drafts were removed. Even his hard drive was erased. Although Jacobson’s death clearly benefited bankruptcy professionals, it was not followed by outrage in the legal community. McGivern refused to investigate, demonstrating government complicity in Jacobson’s death. Fear of the Department of Justice has had a chilling impact on advocates of reform.

SOME SUGGESTIONS FOR CONSTRUCTIVE CHANGE

It is not the structure of the courts of appeal that is flawed. It is the character of the judges. The appellate courts are being destroyed from within by dishonest judges. Appellate judges who abnegate their duty to provide judicial review of a properly raised constitutional issue or obstruct justice by covering up judicial crime must be removed. Contrary to the Constitution, Congress has delegated its oversight of the judiciary to the judges themselves. Peer review is no review. Congress must take back its oversight authority and clean up the courts. Moreover, the executive exercises judicial oversight through the Department of Justice. However, Justice is so entwined with the judiciary that it refuses to even investigate judicial crime. Thus, judicial corruption is rampant in federal and state courts. A judge is at little personal risk for any amount of bribery, cronyism, fraud or other malfeasance in office. It is imperative that dishonest judges be removed and that all judges be made accountable to a countervailing authority.

In 1967, the Warren Court ruled that the term "every person" in the 1871 Civil Rights Act did not apply to judges, in the absence of specific congressional action abolishing judicial immunity. Under the common law, judges were accountable to the king. We have no king. We the people are the sovereign. In regard to sovereign immunity, Lincoln contended that it is as much the duty of government to render prompt justice against itself in favor of its citizens as it is to administer the same between private individuals. Yet federal prosecutors dishonestly hide behind the shield of sovereign immunity to justify selective prosecution. These common law immunity doctrines are inconsistent with the Constitution. It is imperative that Congress abolishes them.

The Constitution states, " No Bill of Attainder ... shall be passed." Such bills proclaim that a specific individual is guilty of a crime in the absence of a trial, with the imposition of death and the forfeiture of the individual’s estate. Included within Bills of Attainder are Bills of Pains and Penalties that impose a penalty less than death. Congress is prohibited from imposing these penalties on citizens. However, judges now render memorandum decisions that in many instances fail to follow the law and impose pains and penalties on individual parties.

In 1831Congress said of its intent in abolishing a law that punished perpetrators of defamatory rumors about judges:

Thus, Congress has protected our right to criticize judicial decisions. However, criticism is thwarted by non-publication. After a decision has been rendered it should not be non-published by the judge or judges who made the decision. Congress should create a Department of Judicial Administration, DJA, in the executive branch. Among other things, the DJA should make the administrative decision not to publish.

It is inconsistent with the Constitution for Congress to vest circuit court judges with the administrative duty of appointing bankruptcy judges. Charles Fairman reports in American Constitutional Decisions that the first time the Supreme Court invalidated an act of Congress was in 1794. An act passed in 1792 imposed administrative duties on the courts. The Supreme Court concluded that the act was unconstitutional, because it imposed a duty on the court that was not judicial in nature. United States v. Todd decided in 1794, reported in a note to United States v. Ferreira, 13 How. 40 (1851). Thus administrative duties are solely within the jurisdiction of the executive. Only the President, with the approval of the Senate, has constitutional authority to appoint judges.

In 1973 the Commission on Bankruptcy Laws reported that the administration of bankruptcies in commercial centers was dominated by bankruptcy rings that embrace the referees (now bankruptcy judges) and all the bankruptcy professionals that practice before them. The Commission reported, in essence, that referees lacked the appearance of impartiality, denying opponents of the trustee due process of law. Moreover the vesting of administrative duties in the courts is a violation of the separation of powers. The Commission proposed the Bankruptcy Act of 1973 that established a National Bankruptcy Service (NBS) in the executive branch having a relationship with the Bankruptcy Court that is analogous to that of the IRS and the Tax Court. The NBS would administer bankruptcies and disputed actions would be litigated in the Bankruptcy Court. It is imperative that Congress pass this or a similar constitutional bankruptcy law.