House leader wants investigation into Calif. judge (Judge Manuel Real, 1966 LBJ appointee)

The chairman of the House Judiciary Committee introduced a resolution Monday to allow the panel to begin investigating a California judge for possible misconduct.

In a statement, Rep. James Sensenbrenner, R-Wis., urged committee members "not to jump to any conclusions in this matter" involving U.S. District Judge Manuel Real.

"Today's resolution merely allows the House Judiciary Committee to open an investigation to determine the facts," Sensenbrenner said. "Only after the House Judiciary Committee has conducted a fair, thorough and detailed investigation, will committee members be able to consider whether ... impeachment might be warranted."

Sensenbrenner added that the next step would be establishing a committee to review the issue, with members from both parties.

The move is the latest development in a long-running controversy tied to a misconduct complaint against the judge.

Real seized control of a bankruptcy from another judge involving a woman whose probation he was overseeing.

The action allowed Deborah M. Canter to live rent-free for three years in a Los Angeles house, costing her creditors $35,000 in rent and thousands more in legal costs, according to court documents.

A judicial discipline committee ruled 3-2 in late April that it had no power to sanction Real, 81, because the chief judge of the U.S. 9th Circuit Court of Appeals failed to properly investigate the complaint. However, the committee agreed that Mary M. Schroeder, the 9th Circuit's chief judge, erred by failing to convene a special committee to review the allegations.

Federal judges are appointed for life, and while they can be impeached, the process is cumbersome and rarely used. In 1980, Congress created circuit judicial councils to review misconduct complaints, but those councils have hardly been aggressive.

In this case, if the House Judiciary Committee determines impeachment is warranted, the full House would have to approve articles of impeachment and the Senate would vote on whether to remove Real from office.

Real, who has been a U.S. district judge in Los Angeles since 1966, has for many years personally supervised numerous probationers, among them Canter, who had pleaded guilty in April 1999 to one count of loan fraud and three counts of making false statements.

If you think that the facts in Canter warrant sanctions for Judge Real, read this:

THIS PETITION CONTAINS A SUGGESTION FOR REHEARING EN BANC
No. 04-15418

IN THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
________________________________________________

GARY VICTOR DUBIN,

Plaintiff-Appellant/Petitioner,

vs.

MANUEL L. REAL, individually; THE INTERNAL REVENUE SERVICE; THE UNITED STATES OF AMERICA; LESLIE E. OSBORNE, JR., individually; JOHN F. PEYTON, JR., individually; CHARLES BANFE, individually; DAVID ALAN EZRA, individually; BANK OF HAWAII; JOHN CANDON, individually; WALTER A. Y. H. CHINN, as Clerk of the United States District Court for the District of Hawaii; and THE JUDICIAL COUNCIL OF THE NINTH CIRCUIT,

Defendants-Appellees/Respondents.
__________________________¬¬¬¬¬_____________________________
On Appeal From The United States District Court
For The District Of Hawaii
•••••
PETITION FOR REHEARING EN BANC
_______________________________________________________

Gary Victor Dubin
Dubin Law Offices
55 Merchant Street, Suite 3100
Honolulu, Hawaii 96813
Telephone: (808) 537-2300
Facsimile: (808) 523-7733
E-Mail: gdubin@dubinlaw.net
Appellant/Petitioner
Introductory Note:

This Petition is being respectfully submitted simultaneously (1) as a Petition For Rehearing En Banc in Case No. 15418, to the United States Court of Appeals for the Ninth Circuit, pursuant to Rule 35 and Rule 40 of the Federal Rules of Appellate Procedure, and (2) as a Petition For Congressional Review, to the Subcommittee on Crime, Terrorism and Homeland Security of the United States House of Representatives Committee on the Judiciary which has recently begun an impeachment investigation of the Honorable Manuel L. Real, pursuant to the “good Behavior” clause of Section 1 of Article III of the United States Constitution and pursuant to the right of United States citizens “to petition the Government for a redress of grievances” guaranteed by the First Amendment to the United States Constitution, as the substance of this Petition should be of equal concern to both.

I
Questions Of Exceptional National Significance
These important proceedings, representing the culmination of a thirteen-year-old struggle by this Petitioner to secure justice in Petitioner’s individual case, in reality reveal as much or more about the past conduct of the Judges of the Ninth Circuit Court of Appeals than they do about the past conduct of this one Petitioner, involving fundamental questions of exceptional national significance for the future of American democracy, which identical issues are now understandably on the priority agenda also of the Congress of the United States:
Whether the Federal Judiciary in general, and this Court of Appeals in particular, can themselves further be relied upon to regulate and to discipline federal judges for misconduct under the “good Behavior” Clause of the United States Constitution, or whether the intervention of the United States Congress is required to establish an independent Inspector General for the Judicial Branch for the purpose of conducting such investigations, or through some other means to establish similar checks-and-balances for the conduct of the Federal Judiciary, as opposed to the current, failed system of self-regulation.
II
Background
In the early 1990s, the United States Justice Department, concluding that too many attorneys were becoming delinquent in filing income tax returns, decided to wage an aggressive campaign seeking to criminally prosecute and to make a public example of one attorney in each State for failing to file.
Petitioner at the time was in the IRS offices in Honolulu being audited for earlier tax years, and became the Justice Department’s Hawaii target; Petitioner’s young son had become ill, subsequently passed away, as a result of which Petitioner was understandably unable to respond to the IRS Examiner’s requests for further tax documentation, which was when the IRS Criminal Investigation Division decided to prosecute him.
On August 13, 1993 – exactly thirteen years ago from today -- Petitioner was charged by the U.S. Attorney’s Office in Honolulu, through the filing of a criminal complaint, with three failure-to-file misdemeanors covering the tax years 1986, 1987, and 1988, although Petitioner was already in the IRS offices being audited for those very years.
The Government, consistent with its determined campaign to hang attorneys in public, immediately issued a press release to the media when Petitioner was arraigned on August 27, 1993, erroneously stating that Petitioner had been indicted by a federal grand jury for, in effect, felony tax evasion, which immediately ruined Petitioner’s law practice and his financial ability to pay for his defense -- the Government later apologizing to the District Court for its “mistake,” after having been unable to convince a grand jury to indict the Petitioner according to the Magistrate assigned to the case.
Petitioner was bench-tried in 1995 by the Honorable Manuel L. Real, visiting in the District of Hawaii at the time, who hand-picked Petitioner’s case off the criminal calendar on the eve of trial, taking the trial away from a Magistrate that Petitioner and the Government had agreed at arraignment as their trial judge, and convicted Petitioner of three willful failure-to-file misdemeanors for having allegedly had $1,497,617.30 in reportable income for the years 1986, 1987, and 1988.
Judge Real sentenced Petitioner consecutively to thirty months imprisonment, enhancing Petitioner’s sentence for having supposedly checked himself into the hospital on the eve of trial to escape Judge Real, something that apparently Judge Real was used to experiencing in his District, and fined Petitioner $125,000.00 (plus the costs of prosecution), which supposedly represented the amount of taxes the Government had lost due to Petitioner’s alleged willful failure to file -- that amount being determinative of the length of Petitioner’s sentence under the sentencing guidelines.
Petitioner spent nineteen and one-half months in federal prisons in California thereafter, lost all of his clients, lost all of his life savings, and returned to Honolulu on October 1, 1996, to a half-way house and later to home confinement, finding his house in foreclosure and all of his personal property stolen.
Throughout that ordeal, Petitioner consistently maintained his innocence, complaining that:
1. he had relied in good faith upon IRS forms and instructions, leading him to believe that he could delay filing income tax returns when he had no net income, as in the three years in question.
2. he had relied in good faith upon written advice from the IRS Fresno Office, who had earlier questioned him about his delayed filings in those years, and who informed him that as a result of business losses he had “no filing requirement,” and who “apologized for any inconvenience” caused Petitioner in questioning him about it.
3. he was admitted to the hospital on the eve of trial by a physician, yet – after trial and before sentencing – he learned for the first time from the Probation Department’s Presentencing Report that just before trial the prosecutors had secretly, behind his back, informed Judge Real, ex parte, that he supposedly had been faking his illness to avoid Judge Real, which caused Judge Real to order the Petitioner arrested and brought to trial in handcuffs in his hospital gown.
4. as a result of that ex parte communication, Judge Real scoffed at the Petitioner throughout trial, bench-trying Petitioner without his case or tax files, without access to an attorney or to his witnesses, while being locked up during trial recesses, and held overnight at a state maximum security prison.
5. at sentencing as well, Judge Real refused to allow the Petitioner to introduce his tax records into evidence, even for the purpose of mitigating the length of his sentence by disputing the Government’s claimed “tax loss.”
6. upon sentencing, Judge Real filed findings of fact that were in most respects completely false, factually contrary to the actual trial record itself.
Naively, Petitioner, trained in and with respect for the law, assumed that the Ninth Circuit Court of Appeals would free him, given Judge Real’s reputation for volatility, lack of judicial honesty, and the absolutely bizarre nature of the trial record.
III
How The Federal Judiciary Failed This Petitioner
It is no secret that the Ninth Circuit Court of Appeals has many times attempted disciplinary action against Judge Real, now 82, such as removing from him some or all of his cases, including at least one formal, failed, unpublished effort more than a decade ago, according to law clerks of the then Chief Judge Procter Hug, Jr., and a more recent, publicized, failed attempt in Canter (Case No. 03-89037), now being understandably investigated by the House Judiciary Committee.
But it is Petitioner’s case which finally and definitively fully demonstrates the frankly disgraceful failure of the Ninth Circuit Court of Appeals to enforce judicial discipline in the Ninth Circuit against abusive judges, such as Judge Real, who display traits of affability at their Brethren’s level, yet who, in sharp contrast practice unchecked tyranny and unbridled dishonesty in their courtroom.
A. Petitioner’s 1995 Direct Appeal
Petitioner’s first, direct appeal in Case No. 95-10040, was decided on December 22, 1995, delivered to Petitioner at a Christmas prison mail call, after the entry of an unpublished Memorandum opinion written by Judge Poole just before he took senior status -- Petitioner’s three-judge panel consisting additionally of Judge B. Fletcher and Judge O’Scannlain, which affirmed Petitioner’s convictions (77 F.3d 490, 1995 WL 764141), concluding as apologists for Judge Real that “Dubin obstructed justice by checking himself into a hospital on the eve of trial,” and finding “Dubin’s remaining contentions are utterly meritless and warrant no discussion.”
The contents of Judge Poole’s Memorandum, however, bears little resemblance or fidelity to either the underlying facts or the applicable law, which is readily evident to anyone who reads that document and compares it to the actual trial transcripts.
For instance, in one part of Judge Poole’s Memorandum, confronted with the fact that there was evidence in the record Petitioner relied upon explicit IRS written advice, Judge Poole states that Judge Real “apparently weighed this evidence,” when in fact the record shows the very opposite, that Judge Real ignored that evidence entirely, stating instead that Petitioner was “enough of a lawyer that knows there’s no estoppel against the government by reason of what some employees might do or don’t do, okay,” when the issue was not estoppel, but good faith belief, a distinction emphasized, for instance, by the United States Supreme Court in the last failure-to-file case before it, Cheek v. United States, 498 U.S. 192, 199 (1991):

The proliferation of statutes and regulations has sometimes made it difficult for the average citizen to know and comprehend the extent of the duties and obligations imposed by the tax laws. Congress has accordingly softened the impact of the common-law presumption by making specific intent to violate the law an element of certain federal criminal tax offenses. Thus, the Court almost 60 years ago interpreted the statutory term “willfully” as used in the federal criminal tax statutes as carving out an exception to the traditional rule. This special treatment of criminal tax offenses is largely due to the complexity of the tax laws. In United States v. Murdock, 290 U.S. 389, 54 S.Ct. 223, 78 L.Ed. 381 (1933), the Court recognized that:

“Congress did not intend that a person, by reason of a bona fide misunderstanding as **610 to his liability for the tax, as to his duty to make a return, or as to the adequacy of the records he maintained, should become a criminal by his mere failure to measure up to the prescribed standard of conduct.” Id., at 396, 54 S.Ct., at 226.

It was well known to the Ninth Circuit Bar at that time that Judge Poole, unquestionably one of the brightest and most well liked federal judges in his time, was unfortunately suffering from severe age infirmities.
While Petitioner was first incarcerated at Boron Federal Prison Camp awaiting a decision on his direct appeal, he was surprisingly contacted by Judge Poole’s office manager, who Petitioner had not previously known, warning Petitioner that he should complain to then Chief Judge Wallace since Judge Poole had been assigned to write the opinion in his case as, according to her, he was in an advanced stage of senility, and she had had lunch recently with then Chief Judge Wallace, who had informed her that everyone knew that they would have to initiate proceedings against Judge Poole unless he took senior status by the end of the year – which he did, right after filing the affirmance in Petitioner’s direct appeal, another example of the Ninth Circuit’s failure at self-regulation.
Petitioner found himself in the uncomfortable position of being forced to protect his reputation and his livelihood by questioning the mental acuity of Judge Poole once his Memorandum was entered, which undoubtedly did not endear him to other Members of the Ninth Circuit Bench preferring to protect their “judicial independence,” even at the expense, it seems, of the due process rights of criminal defendants – which represents yet another aspect of what the House Judiciary Committee should be investigating.
B. Petitioner’s 1997 Collateral Appeal
Immediately upon returning to Honolulu following his incarceration, Petitioner was contacted by a Hawaii attorney living on the Mainland, the person Judge Real claims in his Finding No. 11 supposedly gave Petitioner his files “the morning of trial,” who provided a sworn Declaration to Petitioner that Judge Real’s finding was utterly false, that he never gave Petitioner those files; whereupon Petitioner filed a motion for a new trial, which was heard by Judge Real over Petitioner’s objection, and Judge Real of course refused to listen to that new evidence which incriminated him.
Petitioner then appealed Judge Real’s decision, and the Ninth Circuit Court of Appeals on December 10, 1997, in Case No. 97-10161, by unpublished, unsigned Memorandum, matter-of-factly affirmed Judge Real – the panel consisting of Judges Browning, Pregerson, and Hawkins, refusing to believe Petitioner’s new evidence, especially that Petitioner was tried without his case or tax files, even though those facts are plainly evident throughout the trial transcripts, finding instead that Judge Real did not abuse his discretion in passing upon his own conduct! (133 F.3d 929, 1998 WL 4734), yet another aspect of what the House Judiciary Committee should be investigating.
C. Petitioner’s 2000 Sanctions Appeal
Upon returning to Honolulu and resuming his law practice, Petitioner, a controversial consumer rights attorney specializing in lender liability, who therefore has hardly endeared himself to banking institutions, next in a civil case found himself unfairly subjected to an extraordinarily high $116,862.32 Rule 11 sanction by Honolulu District Judge, David Ezra, who Petitioner had once sued for malpractice for a client, and who Petitioner had been told by Judge Poole’s office manager had interfered in Petitioner’s 1995 direct appeal of his criminal conviction.
Nevertheless, Judge Ezra refused to disqualify himself from the case, yet another aspect of what the House Judiciary Committee should be investigating.
In issuing Rule 11 sanctions, Judge Ezra over and over again castigated Petitioner on the record for always portraying himself “as a victim” -- obviously referring to and judging Petitioner prejudicially as a result of his criminal convictions for having supposedly failed to file federal income tax returns as well as for claimed conduct allegedly having occurred in other cases outside his courtroom outside his jurisdiction for which he admittedly had no personal knowledge.
The sanctions were appealed to the Ninth Circuit Court of Appeals in Case No. 00-15202 (consolidated with Case No. 00-15157), and were affirmed, once again in an unpublished Memorandum, which completely misconstrued the actual record below, ignoring, for instance, among other exculpatory facts, that Petitioner’s clients during the “safe harbor” period had agreed to a dismissal without prejudice as to all Defendants, but Petitioner’s clients refused to agree to a dismissal with prejudice, thereby tying Petitioner’s hands.
Petitioner’s panel, consisting of Judge O’Scannlain once again (who served on Petitioner’s 1995 direct appeal of his criminal convictions, supra, yet who nevertheless refused to recuse himself), and Judges Thompson and Berzon, matter-of-factly affirmed the $116,862.32 sanction award, whose reasoning was completely contradictory to the actual record of the case.
D. Petitioner’s 2003 Judicial Misconduct Complaint
Next, Petitioner complained to a law school classmate of his, a Member of the United States Senate, who suggested that Petitioner file a judicial misconduct complaint against Judges Real and Ezra, since he and his colleagues, concerned about misconduct in the Judicial Branch, had recently passed amended legislation intended to make federal judges more accountable (Section 351, et seq. of Title 28).
On July 13, 2003, Petitioner therefore thanked his friend and filed a detailed, Section 351 judicial misconduct complaint against Judges Real and Ezra, accompanied by more than 5,000 pages of documentation, with the names of hundreds of witnesses, which Chief Judge Schroeder, without explanation, assigned for decision instead to Judge Pregerson, a colleague of Judge Real in the Central District of California and who sat on the panel denying Petitioner’s 1997 collateral appeal, supra (Case No. 03-89100).
Judge Pregerson rejected Petitioner’s Section 351 complaint on two grounds, that Petitioner had supposedly failed to identify any witnesses and since his complaint arose out of a case before those same judges he therefore had to dismiss the complaint supposedly pursuant to Rule 4(c) of the Rules of the Judicial Council of the Ninth Circuit.
Whereupon, Petitioner appealed to the Ninth Circuit Judicial Council pursuant to Section 352(c), on the basis that Petitioner had not only supplied the names of hundreds of witnesses to Judge Pregerson, but that Section 352(b), as he had been advised by one United States Senator passing that very legislation, had changed the standard of review from “shall” dismiss to “may” dismiss where a complaint relates to the merits of a case.
Nevertheless, on April 8, 2004, the Ninth Circuit Judicial Council, consisting of Circuit Judges Kozinski, Kleinfeld, and W. Fletcher, and District Judges Patel, Coughenour, Levi, and Shanstrom -- Circuit Judges Alarcon and Tashima, and District Judge Ezra not participating (Judge Ezra meanwhile, unknown to Petitioner, sitting at the same time in judgment on Judge Real in another misconduct case, in Canter, Case No. 03-89037) -- found “no basis for overturning the order of dismissal . . . for the reasons stated by Judge Pregerson, and based upon the controlling authority cited in support thereof.”
Yet, the panel, demonstrating still more inconsistency and questionable objectivity, thereafter belatedly entered an order amending the language of Rule 4(c) to “may” dismiss to conform to the 2002 revised requirements of Section 352(b), supra, from which bewildering ruling, Petitioner, due to Section 352(c), was prevented from further appealing, yet another aspect of what the House Judiciary Committee should be investigating.
E. Petitioner’s 2003 Fraud-On-The-Court Complaint
Meanwhile, despite the refusal of the Ninth Circuit to seriously consider Petitioner’s appeals, four events occurred which, in effect, collectively have informally cleared Petitioner of any wrongdoing, notwithstanding Judge Real and unfortunately remedial action by the Ninth Circuit Court of Appeals.
First, after a three-year investigation by the Hawaii disciplinary authorities, Petitioner was found to have been railroaded by Judge Real, and became probably the first attorney in American history to be found not worthy of any professional discipline whatsoever after three federal failure-to-file convictions.
Second, Petitioner, also a Member of the California Bar, whose State Supreme Court has mandated an automatic three-year suspension in such cases, after a four-year investigation had his discipline nevertheless converted by a similarly sympathetic settlement judge of the California State Bar Court into a bare minimum public reprimand, which when published in that State’s Bar Journal read more like a criticism of the IRS than of Petitioner’s conduct.
Third, the physician who, according to Petitioner’s prosecutors, had told them that Petitioner had checked himself into the hospital, had been faking his illness, and was being discharged from the hospital, which information they then relayed ex parte to and was secretly accepted by Judge Real just prior to the start of his 1994 trial, gave Petitioner a sworn Declaration stating that he told the prosecutors no such thing, that Petitioner did not and could not check himself into the hospital, and that the prosecutors attempted to intimidate and frighten him into saying otherwise.
Fourth, after an extensive tax audit of the three years in question by the IRS Seattle District Office following Petitioner’s return from prison, which audit was first refused by the District Office and then granted to Petitioner as a result of the intervention of Members of Hawaii’s Congressional Delegation, the IRS subsequently apologized to Petitioner, concluding that for those three years, rather than owing the IRS anything, Petitioner -- as he had continually argued and would have proven had he been allowed by Judge Real to have his tax files at his trial and at his sentencing – actually had no income during any of those years as a result of business losses and was actually owed approximately $100,000, including interest, by the Government due to carrybacks to prior years when income taxes had been paid by him.
Consequently, the IRS paid Petitioner a refund for those three years during which, contrary to his sentence of 30 months which was based, according to Judge Real, on a tax loss to the Government of supposedly hundreds of thousands of dollars under the sentencing guidelines, there was no tax loss.
However, when Petitioner petitioned the IRS Seattle District Appeals Office, seeking reimbursement in the form of a requested tax credit against income tax liabilities for subsequent years, for the $125,000.00 “tax loss” fine levied against him by Judge Real, his reimbursement request was denied, the IRS concluding that it had no “jurisdiction” to be able to return the money since “the penalty went to the court and not to IRS,” and that that would “have to be done by the court, presumably through an appeal. You will have to contact the court system and pursue adjustment, refund or relief there” (See Rule 28(j) letter, dated June 5, 2006, a part of the record in this Appeal).
F. Petitioner’s 2004 Fraud-On-The-Court Appeal
Having been incarcerated while various statutes of limitations expired, and due to the delay before the IRS District Office audit was allowed and concluded, and since any attempt to reopen Petitioner’s criminal case would only have resulted in further waste of time, being heard by Judge Real, and since the Ninth Circuit entered any order instructing the Clerk to file no more papers in Petitioner’s 1995 direct appeal, preventing Petitioner from seeking to recall the mandate, and because no appeal was allowed from a Section 352 denial, Petitioner decided, as his only remaining option short of petitioning Congress for relief, was to file a new, independent action for fraud on the Court committed by Judges Real and Ezra and by his prosecutors, seeking affirmative relief based on whether the Due Process Clause of the Fifth Amendment to the United States Constitution, the “good Behavior” Clause of Article III, Section 1 of the United States Constitution, and Sections 144 and 455 of Title 28 of the United States Code were superior to or subservient to judge-made doctrines of judicial immunity, pursuant the decision of the United States Supreme Court in Hazel-Atlas Glass Co. v. Hartford-Empire Co., 322 U.S. 238 (1944), recognizing the inherent power of federal courts to grant relief against fraud upon the Court, especially when committed by officers of the Court, as explained by Justice Black in circumstances where there has been a deliberate fabrication of evidence, as here:
[T]ampering with the administration of justice in the manner indisputably shown here involves far more than an injury to a single litigant. It is a wrong against the institutions set up to protect and safeguard the public, institutions in which fraud cannot complacently be tolerated consistently with the good order of society. Surely it cannot be that the preservation of the integrity of the judicial process must always wait upon the diligence of litigants. The public welfare demands that the agencies of public justice be not so impotent that they must always be mute and helpless victims of deception and fraud.

Petitioner’s fraud-on-the-court complaint was filed below on February 10, 2003 (Tab 1), as was Petitioner’s motion to set aside his convictions, for reimbursement, and for sanctions on November 11, 2003 (Tab 2).
The entire local District Court bench recused itself, and Chief Judge Schroeder without explanation appointed Judge Aspen from the Northern District of Illinois to preside over the new action, who was presumed at the time by Petitioner to have no local ties, Petitioner only recently learning that his wife apparently is a graduate of Punahou School in Honolulu -- not the kind of completely, on-paper, uninvolved independent jurist Petitioner had been hoping for.
Judge Aspen proceeded to dismiss Petitioner’s case before any discovery was allowed, on the basis of judicial immunity, as did in part Petitioner’s merits panel on June 16, 2006 (Tab 3), consisting once again of Judge Pregerson, who sat on the panel that denied Petitioner’s 1997 collateral appeal and who rejected Petitioner’s judicial misconduct complaint, together with Judge B. Fletcher, who sat on the panel that denied Petitioner’s 1995 direct appeal, and Judge Hall.
The stated basis for the panel’s decision was that since “Dubin appeals the district court’s dismissal of his action for ‘fraud upon the court’ under Rule 60(b) of the Federal Rules of Civil Procedure . . . [w]e agree with our sister circuits that an action under Rule 60(b) . . . cannot be used to collaterally attack a criminal conviction.”
The fundamental flaw in the panel’s reasoning is that Petitioner’s Complaint and Appeal are not based on Rule 60(b), not even once mentioning Rule 60(b), but upon the inherent power of federal courts to grant relief for fraud on the Court pursuant to Hazel-Atlas, supra, and inherent judicial power.
Not even judges, let alone prosecutors, have judicial immunity from criminal conduct such as obstruction of justice and falsification of evidence, Ex parte Virginia, 100 U.S. 339 (1880); Braatelien v. United States, 147 F.2d 88 (8th Cir. 1945); McFarland v. State, 109 N.W.2d 397 (Neb. 1961).
Or, are federal courts supposedly powerless to discipline judges or lesser officials, no matter their fraud upon the Court.
IV
Conclusion
Every wrong is supposed to have a remedy.
That should be true in Petitioner’s circumstances.
This Appeal merits consideration by the Ninth Circuit en banc or by the House Judiciary Committee.
And, if the panel’s decision is not withdrawn, at the very least the entire Court should reopen Petitioner’s prior appeals, notwithstanding the Clerk having been ordered to accept no more filings therein, and recall the mandates in order to afford deserved relief.
For, as stated at the beginning of this Petition, what happened to this Petitioner reveals as much or more about the past conduct of the Judges of the Ninth Circuit Court of Appeals than it does about the past conduct of Petitioner.
Unlike most of the many known victims of the abuses of Judges Real and Ezra, it is likely that few have had Petitioner’s training and Petitioner’s luck sufficient to professionally, financially, and emotionally survive both gentlemen, in order to wind up now before this entire Court, after thirteen long and painful years of such prolonged perseverance.
DATED: Honolulu, Hawaii; August 13, 2006.
Respectfully submitted,
______________________
GARY VICTOR DUBIN
Petitioner

And, if that does not convince you, then read this:

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII

GARY VICTOR DUBIN,

Plaintiff,

vs.

MANUEL L. REAL, individually; THE INTERNAL REVENUE SERVICE; THE UNITED STATES OF AMERICA; LESLIE E. OSBORNE, JR., individually; JOHN F. PEYTON, JR., individually; CHARLES BANFE, individually; DAVID ALAN EZRA, individually; BANK OF HAWAII; JOHN CANDON, individually; WALTER A. Y. H. CHINN, as Clerk of the United States District Court for the District of Hawaii; and THE JUDICIAL COUNCIL OF THE NINTH CIRCUIT,

Defendants.
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) CIVIL NO. 03-00058 SPK-BMK

COMPLAINT FOR FRAUD UPON THE COURT; EXHIBITS “A” AND “B”; DEMAND FOR TRIAL BY JURY; SUMMONS

COMPLAINT FOR FRAUD UPON THE COURT

COMES NOW Plaintiff GARY VICTOR DUBIN, and for his Complaint against Defendants MANUEL L. REAL (“Real”), individually; THE INTERNAL REVENUE SERVICE (“IRS”); THE UNITED STATES OF AMERICA (“USA”); LESLIE E. OSBORNE, JR. (“Osborne”), individually; JOHN F. PEYTON, JR. (“Peyton”), individually; CHARLES BANFE (“Banfe”), individually; DAVID ALAN EZRA (“Ezra”), individually; BANK OF HAWAII (“BOH”); JOHN CANDON (“Candon”), individually; WALTER A. Y. H. CHINN (“Chinn”), as Clerk of the United States District Court for the District of Hawaii; and THE JUDICIAL COUNCIL OF THE NINTH CIRCUIT (“Judicial Council”), alleges and avers in this independent action for fraud upon the Court, as follows:
A. Plaintiff Was Wrongfully Convicted Of Three Misdemeanor Tax Convictions

1. Plaintiff, 64, is a Hawaii attorney, a resident of the City and County of Honolulu, and a Member of this Court’s Bar, who, with the exception of the events described herein, has never been found guilty of any personal or professional wrongdoing throughout his forty-year legal career, first as a law professor, and then as a practicing trial attorney.
2. On August 27, 1993, on Plaintiff’s 55th birthday, United States Assistant Attorney Osborne, also a resident of the City and County of Honolulu, and the IRS issued a Press Release, carried as a front-page media event throughout all of Hawaii, announcing that Plaintiff had been indicted by a Federal Grand Jury for failing to file federal income tax returns for the years 1986, 1987, and 1988, when his combined “income” was said to have been for all three of those years $1,643,900.00 ($530,511.00 in 1986, $634,100.00 in 1987, and $479,289.00 in 1988).
3. Plaintiff was charged under Section 7203 of Title 26 of the United States Code (IRS Code), with the “willful failure to file return, supply information, or pay tax”: “Any person required under this title to pay any estimated tax or tax, or required by this title or by regulations made under authority thereof to make a return, keep any records, or supply any information, who willfully fails to pay such estimated tax or tax, make such return, keep such records, or supply such information, at the time or times required by law or regulations, shall, in addition to other penalties provided by law, be guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than $25,000 ($100,000 in the case of a corporation), or imprisoned not more than 1 year, or both, together with the costs of prosecution.”
4. On September 13, 1994, the day of trial, Plaintiff was hospitalized at Queen’s Medical Center (“Hospital”), within blocks of the Honolulu Federal Court House, and, found to have been faking his illness by Visiting California Central District Judge Manuel L. Real, a resident of the State of California sitting temporarily in the District of Hawaii, Real had Plaintiff arrested while in his Hospital gown and forcibly brought to trial in handcuffs by two burly U.S. Marshals.
5. Subsequently, following a one and one-half day non-jury trial held on September 13 and 14, 1994, in United States v. Dubin, Cr. No. 93-1434-MLR, in this Court, during which time Plaintiff was jailed, Real found Plaintiff guilty of three failure-to-file misdemeanors, pursuant to Section 7203 of Title 26 of the United States Code, for having failed to file federal income tax returns for the years 1986, 1987, and 1988, when Real determined Plaintiff’s combined “gross business income” for all three of those years to have been $1,497,617.30 ($533,725.39 in 1986, $633,594.38 in 1987, and $330,297.68 in 1988), and Plaintiff’s combined “taxable income” for all three of those years to have been $518,744.59 ($199,980.29 in 1986, $284,787.75 in 1987, and $33,976.54 in 1998).
6. The IRS investigation of the Plaintiff was conducted by Special Agent Banfe of the Honolulu Office of the Criminal Investigation Division of the IRS, at the time a resident of the City and County of Honolulu, who later was formally honored with a departmental cash award as a result of Plaintiff’s successful prosecution.
7. Relying upon the maximum Federal Sentencing Guidelines, on January 20, 1995, Real sentenced Plaintiff, who had been released on a cash bond of $250,000.00 awaiting sentencing, to a prison term of thirty (30) months, running each of the three misdemeanor sentences consecutively, and one-year of “supervised release” thereafter, and fined Plaintiff $125,000.00, based upon the loss to the Government in tax revenues, plus $6,685.70 for the costs of his prosecution, for a total fine of $131,685.70.
8. Plaintiff, given only days in which to arrange his affairs by Real, sequentially spent a total of nineteen and one-half months, from February 14, 1995, through October 1, 1996, on the U.S. Mainland in three federal prisons in California, at Boron Federal Prison Camp, at Terminal Island Federal Correctional Institution, and at Lompoc Federal Correctional Institution, before returning to Honolulu to a half-way house and then to home confinement, until eventually freed.
9. Initially, as a result of that 1993 Justice Department Press Release, supra, and thereafter as a consequence of Real’s late-1994 convictions, Plaintiff lost all of his clients and his entire law practice of thirty years and virtually all of his assets and life savings, notwithstanding Plaintiff’s steadfast denial, during every minute of his prosecution, that he had had no taxable income during any of those years.
10. Following Plaintiff’s return to Honolulu, the District Office of the Internal Revenue Service on the U.S. Mainland proceeded to audit nearly twenty years of Plaintiff’s previous federal income tax returns, including the three years in question (1986, 1987, and 1988), and after an examination that lasted more than six years, the District Office Revenue Agent on December 6, 2002, finally determined that Plaintiff’s combined “taxable income” during those three years, according to the IRS, was actually a negative amount, a minus $307,794.00 (a negative $243,645.00 taxable income in 1986, a negative $60,801.00 taxable income in 1987, and a negative $3,348.00 taxable income in 1988), resulting in no taxable income whatsoever in any of those years, for a “corrected tax liability” of “$0.00,” “$0.00,” and “$0.00,” respectively in each of those three years, according to the IRS’ own Mainland District Office’s computations only just recently provided to the Plaintiff by facsimile.
11. Additionally, since Plaintiff had paid the IRS approximately $70,000.00 as his tax liability for 1984, since operating losses must be carried back to the three previous years, the IRS Mainland District Office Revenue Agent has also determined that, considering the refunds due Plaintiff (with interest) for the 1984 overcharges, rather than owing the IRS anything for the 1986, 1987, and 1988 tax years, Plaintiff was actually owed more than $100,000.00 by the IRS at the conclusion of those three years for which he was incongruously prosecuted and sentenced by Real for supposedly owing the Government huge tax money.

B. Plaintiff’s Convictions Were No Mere Accidental Miscarriages Of Justice

12. Plaintiff’s three false failure-to-file misdemeanor convictions were no mere accident; almost eight years of investigation after-the-fact have revealed that they were instead the result of the type of unchecked official abuse of the federal criminal process which it is believed has become widespread in the Ninth Circuit for many years, of which this Plaintiff is but one of its many otherwise unknown victims.
13. Had this Plaintiff, like most such victims, not been an attorney with the professional knowledge, skill, experience, and determination to battle against the system, the true facts behind Plaintiff’s false convictions would similarly presumably never be known.
14. An understanding of Plaintiff’s now documented mistreatment provides rare and important insight for a constitutional democracy into the otherwise low-visibility institutional corruption that many of those who practice in this District Court frequently witness, but fear to challenge, an insidious and unchecked arrogance that has transformed -- for too many sitting district judges -- the need for judicial independence through life tenure guaranties, into an out-of-control justification for an autocratic and unaccountable, defensively self-protective federal judiciary. And this Plaintiff is in a position to know.
15. Plaintiff invites his professional colleagues with such knowledge that heretofore have sheepishly preferred to share their thoughts in private conversations, to now speak up, or what happened to Plaintiff might well tomorrow happen to you.
16. For, what befell this Plaintiff was more than a deliberate attempt to personally destroy him and his reputation, but was an attack by corrupt officials upon the independence of the entire Hawaii Bar.
17. What follows is a short, six-point summary of how this Plaintiff was railroaded -- the specific details concerning which are presented in the next section of this Complaint, together with additional clues into an even deeper corruption that threatens individual liberty in this State that goes beyond the limited scope of this pleading.
18. First, Plaintiff’s prosecution was not the result of any random investigation of taxpayers hiding from the IRS; the IRS in the early 1990s launched a national project to purposely hang one attorney in every State for failure-to-file, a sort of police state tactic that caused some State Bars to file lawsuits against the IRS, but the news did not reach Hawaii until this Plaintiff had already been fingered, when in its January 1994 issue of the Hawaii Bar Journal the Hawaii State Bar belatedly formally and bluntly warned all Hawaii lawyers that “the IRS is targeting” lawyers for non-filing.
19. Plaintiff was at the time being audited by the IRS for those very same years in question, and had already freely provided the IRS Examiner in Honolulu, Ms. Janet Nakasone, with all of Plaintiff’s tax records for 1986, 1987, and for most of 1988, well before the IRS Criminal investigation had even begun; all Banfe had to do, therefore, was to review the very records of gross income and business deductions that the IRS’ Honolulu Office already had to understand that Plaintiff had lost money in each of those three years had Banfe been interested in uncovering the truth.
20. Second, the IRS was either unwilling to attempt to acquire, or unable to get, a federal grand jury to indict Plaintiff, notwithstanding Osborne and Banfe’s 1993 Press Release to the contrary, supra, which of course naturally predictably devastated Plaintiff’s law practice well in advance of trial; for Plaintiff was to the contrary merely charged by the cavalier filing of a “criminal information” prepared by Osborne himself without any grand jury knowledge or approval whatsoever, and when that false Press Release was called to this Court’s attention during pretrial proceedings, Osborne merely apologized for what he termed to be “a mistake”.
21. Third, the Plaintiff and the Government on August 27, 1993, at arraignment, had agreed upon trial by Magistrate Judge Barry M. Kurren, whose impartiality and fairness was and remains beyond question, and Plaintiff for that reason had agreed to waive a jury trial, yet that written agreement was abruptly cast aside by this Court when the case was conveniently non-randomly reassigned without explanation on the eve of trial to Real, whose reputation for volatility, dislike of attorneys, and maximum, harsh failure-to-file sentences Plaintiff subsequently learned meant that the outcome of the trial could easily have been predicted no matter the actual nature of the trial evidence.
22. Fourth, throughout the trial proceedings Real continually scolded Plaintiff for having checked himself into the hospital to avoid trial; it was only months later, prior to sentencing, as a result of chance revelations by a Probation Officer, that Plaintiff for the first time learned, later to be admitted in appellate proceedings, that Osborne and Peyton had informed Real in secret ex parte communications through Real’s law clerk just prior to the start of trial that Plaintiff, according to Queen’s “duty doctor” -- so they said -- had been faking his illness and was being released from the Hospital.
23. Thus, in the Government’s Answering Brief before the Ninth Circuit Court of Appeals in Case No. 95-10040, at 26 27, Osborne admits: “the United States Attorney, who prosecuted the case [Osborne], called Queen’s medical Hospital and spoke to Doctor Wayne [sic] Wakuzawa, M.D., the defendant’s attending physician. Dr. Wakuzawa informed the Assistant United States Attorney [Osborne] that in the doctor’s opinion, the defendant did not have any condition which would require his hospitalization. The defendant had no acute medical condition. The defendant was to be discharged from the Medical Wing of the hospital at that point. The fact that Mr. Dubin was being discharged from the hospital was related by the United States [Osborne] to the court clerk.”
24. The physician, an emergency room doctor, Dr. Wynn Wakuzawa, who spoke with Osborne that day was not “the duty doctor” and to the contrary, having now admitted to being somewhat more than fearful of IRS retaliation, has finally nevertheless agreed to provide, and on October 8, 2002, has now provided Plaintiff with a sworn declaration that he not only never told Osborne that, but that Osborne knew before speaking with him from a prior conversation that Osborne had had with Plaintiff’s actual admitting physician, Dr. Marie-Louise deVegvar, earlier that day, that she was Plaintiff’s physician and that she had admitted Plaintiff to the Hospital, not him, and that Plaintiff could not have admitted himself, and indeed no one admit themselves into Queen’s or into any other hospital, and that Plaintiff was not being discharged from Queen’s, as Osborne and Peyton had falsely reported to Real ex parte, supra, that they had learned supposedly from “the duty doctor,” but Plaintiff had in fact been admitted by Dr. deVegvar to Queen’s for treatment for at least one to two weeks.
25. As Dr. Wakuzawa has now testified, under oath, in his October 8, 2002, sworn Declaration, p. 4, recently provided to Plaintiff: “At no time that morning did I ever tell anyone that Mr. Dubin had checked himself into the hospital. No one can check himself or herself into the hospital without a physician ordering an admission.”
26. And, as Dr. deVegvar has now similarly testified, under oath, in a December 11, 2002, sworn Declaration of hers, p. 3, similarly provided to Plaintiff: “Mr. Dubin did not and could not admit himself to Queen’s. It was my judgment. On the morning of September 13 at 9:30 a.m. I received a phone call from Leslie Osborne, Assistant U.S. Attorney, who wanted to discuss my evaluation and treatment of Mr. Dubin. When I refused to discuss the case with him because of the issue of confidentiality, he stated that he would then issue a subpoena for my appearance in Court. I felt intimidated. I then told him that I had admitted Mr. Dubin to Queen’s Hospital that morning for treatment”.
27. Fifth, throughout the trial proceedings, having been forcibly taken to trial from his Hospital bed, the Plaintiff continually complained to no avail during trial proceedings on the record that he did not have his tax or his case files with him for his defense -- while additionally without counsel and without any ability to call witnesses in his defense or to do research since Plaintiff was held in a cell during lunch breaks, prevented by two U.S. Marshals from speaking with anyone during trial, and locked up at Halawa State Prison by Real each evening as punishment for checking himself into the Hospital.
28. Although Real stated, and again on the record, at the end of the first and only full day of trial, on September 13, 1994, that Plaintiff’s absent files would be brought to him that evening (which they were not), Real nevertheless entered false findings of fact, apparently himself cognizant of such an otherwise obvious due process violation, claiming that an attorney friend of the Plaintiff, a Honolulu attorney now residing on the U.S. Mainland, James Clement, had supposedly brought Plaintiff his files at the start of trial, which attorney Clement in a sworn Declaration has now subsequently flatly denied.
29. Sixth, Plaintiff was ill and had been treated and sedated at the Hospital only minutes before being arrested and being forcibly brought to Real’s Courtroom a few blocks away; nevertheless, Real refused, again on the record, to inquire into Plaintiff’s resulting inability, without counsel, to adequately defend himself, yet when it came time to file his findings of fact, Real falsely states that he thoroughly examined Plaintiff’s mental and physical health before proceeding with trial.

C. Plaintiff’s Convictions Were The Result Of Official Misconduct

30. Real, while visiting in Hawaii to preside over the Marcos multidistrict civil trial, on the eve of Plaintiff’s trial handpicked Plaintiff’s case from the trial calendar, with his seniority taking the case abruptly away from the assigned Magistrate Judge, Judge Kurren, who was to have presided at Plaintiff’s trial by standing local rule and by jury-waived agreement of the parties entered into at arraignment.
31. Real quickly prejudged the case before hearing any witnesses or seeing any evidence, contrary to the Osborne’s early arraignment statements on the record, with which Kurren had agreed, that the case was “complicated” although “only a misdemeanor” (Transcript 10/6/93, p. 4; Order 10/6/93), Real starting Plaintiff’s trial with the admonition, suggestive of one planning to leave to hop on a plane: “this case is not a complex case, it’s failure to file income taxes, that’s all. There’s no complexity to it at all, it’s very, very simple” (Transcript 9/13/94, p. 6).
32. Trial had been set for August 1994, but Plaintiff, representing himself, became ill with chronic back pain in April, which worsened in July, causing Kurren in late August to grant a continuance, based on medical reports, finding the Plaintiff “excusably unprepared”: “[F]ailure to grant it would make the continuance of proceedings impossible due to the health of the Defendant, and would deprive the Defendant of counsel of his choice and reasonable time necessary for effective preparation” (Order 8/22/94).
33. Follow-up medical evidence revealed that Plaintiff’s back problems were still severe, making it impossible for him to prepare for trial in September; additionally, Plaintiff’s only son, in his senior year at the University of Southern California, just before Plaintiff’s arraignment had died of AIDS after struggling for four months in intensive care at Queen’s, causing Plaintiff to suffer from recurring bouts of severe depression.
34. Plaintiff sought a brief, one-week continuance in late August in order to retain counsel, but Real, lecturing Kurren, scoffed at Plaintiff’s request and at a hearing that lasted less than five minutes refused to grant a further continuance, although counsel, Benjamin Cassiday III, hired to secure a continuance for Plaintiff, told Real that in his professional judgment Plaintiff was ill and “was incompetent to act as his own attorney” (Transcript 9/12/94, p. 2).
35. Plaintiff subsequently consulted with his physician, Dr. deVegvar, who, as his condition worsened, decided on an emergency basis to admit him to the Hospital prior to trial: “I evaluated Mr. Gary Dubin on September 9, 1994 at which time he was feeling depressed and [had] accompanying passive suicidal ideation . . . Mr. Dubin was suffering from Major Depression resulting from his son’s death two years ago with increase in depressive symptoms over the past several weeks. . . . [T]he death of a child is one of the most devastating events a human being may experience and it may take years to recover from such a loss. . . . Mr. Dubin did not and could not admit himself. It was my judgment” (Medical Report 12/22/94).
36. Judge Real, told immediately of Petitioner’s hospital admission, ordered government doctors to examine Petitioner (Transcript 9/13/94, p. 2).
37. Before government doctors could arrive, Osborne and Peyton, also an Assistant U.S. Attorney and a resident of the City and County of Honolulu, telephoned Dr. deVegvar, who informed them that she was the admitting physician, and they then bullied her into disclosing Plaintiff’s medical condition, learning from her that she had admitted him for one to two weeks (Transcript 9/13/94, p. 2).
38. Osborne and Peyton then contacted Dr. Wakuzawa in Queen’s Emergency Department, who knew nothing of Petitioner’s hospitalization ordered by Dr. deVegvar, only that his department had taken an emergency spine x-ray (Declaration of Dr. Wakuzawa 10/8/02, pp. 3-4).
39. Then Osborne and Peyton, with full knowledge of the actual facts concerning Plaintiff’s admission by Dr. deVegvar from their prior telephone conversation with Dr. deVegvar, nevertheless without notice to Plaintiff sent Real a telephone message through his law clerk, Leslie Sai, that morning that Plaintiff was faking his illness and was well and was being discharged from the Hospital (Government’s 1995 9th Circuit Answering Brief, p. 27).
40. Upon receiving that false message, Real blew his top, rescinded his examination order, had Plaintiff arrested at the Hospital and brought to trial immediately in handcuffs.
41. Petitioner only learned of that secret ex parte communication three months later, after the trial, when the Probation Department revealed what had happened in Paragraph 24 of its draft Presentencing Report: “According to AUSA Osborne, when he called Queen’s Medical Center to make arrangements for the Government to examine the defendant, he was advised by the duty doctor that the defendant was being discharged because he had no physical medical condition that would allow him to remain in the hospital. Subsequent to receiving this information from AUSA Osborne, the Court found [in absentia] that the defendant was physically and mentally fit to participate in the non-jury trial, and immediately issued a no bail warrant [bracketed words supplied]”.
42. First, Dr. Wakuzawa was not the Hospital’s “duty doctor,” and as he later would confirm, he was not even aware that the Plaintiff had been admitted to the Hospital (Transcript 1/9/95, p. 6).
43. Second, Real made no such inquiry into Plaintiff’s health whatsoever, welcoming him in handcuffs straight from the Hospital with only “All right . . . you’re here” (Transcript 9/13/94. p. 4). With characteristic inconsistency, seeing Plaintiff, while incarcerated, the following year, Real was more forthright: “You look a lot better than you did before. You sound a lot better” (Transcript 5/10/95, p. 5).
44. Third, Real at the trial openly ignored the fact that the Plaintiff was medically sedated, and even Osborne felt sufficiently concerned himself for the likelihood of reversal on appeal, given Plaintiff’s obvious dizzy condition, to bring it to Real’s attention: “MR. OSBORNE: Was the Court advised of a problem with medication? THE COURT: Yes, we have no written prescription, or dosage, or anything from the hospital, so I’m not going to get involved in that kind of a situation. We don’t know what the medication is about or anything else” (Transcript 9/13/94, p. 26); compare with Queen’s September 13, 1994, contemporaneous “Hospital Notes”: “Now taking Zoluft and Ativan . . . Cognition-impaired concentration. Patient taken by Marshals from Hospital without being discharged.”
45. Fourth, Plaintiff was arrested and confined throughout the trial, yet Real paid no attention to the effect such confinement was having on Petitioner’s ability to defend himself, not being allowed to make telephone calls, to contact witnesses, to do research, or even to sleep: “MR. DUBIN: I just don’t feel capable of cross-examining . . . . Last night, after I left this court, I had an hour and a half in transportation; about an hour and a half waiting around in a cell while I was strip-searched and processed; another half an hour here before we left; got to my cell, which is a concrete – almost like concrete slab with a light overhead, at about 7:30. Nine o’clock you go to sleep there with a light over your head. Woke up about 6:00. I couldn’t sleep under those conditions. . . . THE COURT: Lawyers always work without sleep, Mr. Dubin” (Transcript 9/14/94, pp. 18-19).
46. Fifth, after trial, when, at sentencing, the true medical facts surfaced, Real angrily sought to discredit Plaintiff’s admitting physician, Dr. deVegvar, debunking her credibility even before she could testify and even before he had even seen her face: “THE COURT: [She’s] given a report and I’ve read that report, and I’ve read the notes and I just don’t think she’s candid. I think it is made up. Okay? MR. CASSIDAY: Well, Your Honor, I think I should call her to --. THE COURT: Be my Guest” (Transcript 1/13/95, p. 4).
47. Knowing Real’s volatile reputation, Osborne and Peyton with their false ex parte report to Real literally spun him around like a toy top. As a result, Real continually harangued at Plaintiff’s credibility throughout the trial, prejudging the entire case, over and over again yelling at Plaintiff, for instance: “There was no reason that you went to the hospital except to escape trial” (Transcript 9/13/94. p. 103).
48. And, at sentencing, for that reason, despite all of the medical evidence available to the contrary, Real even enhanced Plaintiff’s sentence by several months for supposedly checking himself into the hospital while well (FOF 34).
49. The worst prejudice that resulted from Real’s reliance upon such secret ex parte, out-of-court evidence was that -- having been arrested in his Hospital robe and taken directly to Real’s courtroom less than a mile away, and incarcerated during recesses and overnight -- Plaintiff had no tax or case files or trial exhibits with him for his defense, nor could he call witnesses or do research.
50. When the prosecutors in the middle of trial themselves felt the need to raise the issue with Judge Real, recognizing the farce of trying a criminal defendant without allowing him access to his files, Judge Real, ordering the trial to nevertheless proceed, tried to downplay the problem: “THE COURT: A pen and paper, Mr. Dubin [Osborne provides a pen and paper]. What we want you to do is write a note authorizing your friend to . . . go get the exhibits which you left at home. . . . MR. DUBIN: Your Honor, can I say on the record that my ability to prepare at all at the trial of this matter would enable me to have access to my records, . . . my office files, hardly the kind of thing that I would have at a jail lock-up. THE COURT: No, it’s a little late for that. . . . No, you had the documents at home and we will get the documents . . . and any notes that you may have on them, and they will be delivered to the detention center so that you can do whatever you want with those documents. . . . All right, sir, would you do that? Would you get that note and get those materials for Mr. Dubin? . . . All right, Mr. Clements” (Transcript 9/13/94, pp. 32-36).
51. When, however, Petitioner still continued to complain about the absent of his files at the conclusion of the first and only full day of the one and one-half day trial, Real showed only punitive disinterest: “THE COURT: 9:00 o’clock tomorrow morning, Mr. Dubin. . . . MR. DUBIN: For me to properly prepare this case I have to have access to a number of files . . . THE COURT: Mr. Clements has gone to your house to get them --. MR. DUBIN: No, that’s not in there, Your Honor. THE COURT: -- and he can bring them to wherever the marshals are going to place you and take care of that problem. MR. DUBIN: Your Honor, it’s not in that area where I -- . THE COURT: Well, Mr. Dubin, I can’t help that. You had – since January you’ve had all of these records with which to prepare for trial. Again, as I tell you, this is not Burger King” (Transcript 9/13/94, p. 106).
52. Real, four months after trial, upon completing sentencing entered false findings of fact, contradicting what he himself on the record at the trial, supra, had noted had actually to the contrary occurred, seeking to hide by his Finding of Fact No. 11 that he had tried the Plaintiff without his case or tax files: “DUBIN complained that he did not have his records. Those were brought to him during the morning of September 13, 1994, by a friend, also a lawyer, and those records were available to DUBIN throughout the trial. During the trial DUBIN referred to his records and what they contained.”
53. Upon Plaintiff’s returning in late 1996 to Honolulu after serving time in three Mainland prisons, and after having had limited access to the outside world, Plaintiff was contacted by attorney James Clement, who had been residing in New York State – the “friend” who Real, supra, on September 13, 1994, during trial had ordered go to Plaintiff’s residence and bring him his files for the last few hours of trial the next day – and who had telephoned Plaintiff, having heard he had returned.
54. Clement for the first time gave Plaintiff the details, not previously known to Plaintiff, later included in a sworn Declaration, concerning how he had gone to Plaintiff’s residence the afternoon of September 13, 1994, picked up the wrong files, returned to the courtroom at the end of that first day, finding everyone gone, which testimony further contradicts Real: “I currently reside in Ithaca, New York. . . . I returned to Honolulu at the end of the summer in 1994, and I sat as a visitor at Mr. Dubin’s tax trial on both days . . . . Judge Real called me to the podium and instructed me to get Mr. Dubin’s files for him. . . . I left the courtroom at . . . about 1:30 p.m., went to Mr. Dubin’s house, which was . . . forty minutes away, found two boxes of materials that appeared to be related to the tax case, and returned that day after the trial had adjourned, at approximately 5:00 p.m. When I reached the courthouse, Mr. Dubin was gone, apparently taken to Halawa prison for the night. I inquired at the U.S. Marshals’ office in the courthouse whether I could bring the case materials to Mr. Dubin, and I was told that I could not since I was not his attorney. I was instructed by the Judge’s clerk to leave the case materials with them and that they would give them to Mr. Dubin the next morning for the second [and final one-half] day of trial. . . Only later during trial did I discover from Mr. Dubin that I had brought him only a duplicate set of Government’s Exhibits and none of his case or tax files. In preparing this Declaration, I requested copies of various documents from Mr. Dubin. . . . which I have never before seen. In Finding of Fact No. 11, Judge Real states that Mr. Dubin had his records ‘brought to him the morning of September 13, 1994 by a friend, also a lawyer, and those records were available to DUBIN throughout the trial.’ . . . I know of my own personal firsthand knowledge that Finding of Fact No. 11 is absolutely false.”
55. The obvious prejudice resulting from the absence of access to a defendant’s files in a criminal tax prosecution should hardly require comment.
56. Plaintiff’s defense was based upon the absence of not one but all three elements necessary for a successful Section 7203 prosecution: (a) that he had no duty to file timely returns in 1986-1988 because he had no individual gross income, (b) that he nevertheless did file informational returns which satisfied Section 6011 requirements; and (c) that any failure to file timely returns on his part was in any event not willful, and hence not criminal.
57. Without Plaintiff’s complete files, especially his tax records, it was virtually impossible for the Plaintiff to defend himself, although Real did give him the Court’s copy of the Government’s selective partisan trial exhibits the first day of the one and one-half days of trial, and did allow him to introduce into evidence a few exhibits in the Court’s case file, attached to one of Plaintiff’s early 1993 pretrial motions, the second and final day of trial (Transcript 9/13/94, p. 15; Transcript 9/14/94, p. 116).
58. Having always prepared his own returns, for instance, and having filed virtually every year of his adult life before this ordeal, Plaintiff had formed the belief from IRS publications that his duty to avoid delaying filing his tax returns as a sole practitioner was based upon his net business income, and not his gross receipts.
59. Like many taxpayers, the Plaintiff had always referred to the IRS’ own printed annual “Tax Guide For Small Business” in preparing returns, which had consistently instructed taxpayers – at least until after Plaintiff’s trial when the language therein was suddenly changed in 1994 – to subtract costs from business gross when calculating one’s individual gross income: “If you are a sole proprietor, figure the net income or loss from your business on Schedule C (Form 1040). If your business has a net loss, it generally can be deducted from other income when figuring your gross income” (1984 IRS Guide).
60. That method of calculating individual gross income was reinforced in Plaintiff’s mind by the very structure of Form 1040 historically, which instructed Schedule C taxpayers, and still does, to total individual gross income by adding to wages “business income or loss” (IRS Form 1040).
61. And, Plaintiff’s view was further reinforced by the IRS’s own Form 1040 “who must file” instructions, requiring filing “if you have net earnings from self-employment income of at least $400.”
62. Plaintiff, in fact, had had a history of delaying filing returns in years he had no net earnings; for instance, ten years before being prosecuted Plaintiff had delayed filing his 1982 return until October 15, 1984, reporting to the IRS that his income was “less than the amount required for filing” on its inquiring Form 4901, and why, writing in “self-employed income below amount required for filing (loss)”, and was never informed his understanding was in any way wrong.
63. The issue was never whether Plaintiff would file, but only if he would delay filing in years with no net earnings, for he would always file Form 1040s even with losses eventually, to track depreciation, carry forward losses, meet lender requirements -- while always informing the IRS he had had no income in such years on IRS Form 4868, and subsequently on IRS Form 8176 routinely for decades; e.g., for the three years in question, Plaintiff informed the IRS: “1986: ‘no net income’”; “1987: ‘I did not file a return because I believe that my professional income was below filing requirements’”; “1988: ‘net earnings from self-employment income below and before filing requirement.’”
64. Plaintiff did not rely on IRS silence alone, for when its Fresno Office received bank interest reports and questioned Plaintiff on the whereabouts of his Form 1040s for the years in question, Plaintiff explained that he was deducting his net operating losses in figuring his gross income for reporting purposes, and was told: “We received your letter concerning Form 1040 for the tax periods ending December 31, 1985 and 1986. We have corrected our records to show that you are not required to file for 1985 and 1986 Form 1040. The reason this problem occurred is because your bank has the interest as individual income and it should be reported as business income. We apologize for the delay in responding and any inconvenience we may have caused. Sincerely, Julia Moreau, Tax Examiner” (the same notices were received for tax years 1987 and 1988).
65. Even this dramatic evidence of good faith belief Real dismissed out-of-hand: “You’re enough of a lawyer that knows there’s no estoppel against the government by reason of what some employees might do or don’t do, okay” (Transcript 9/13/94, p. 13), confusing reliance upon government officials used as a defense to obeying the law, with reliance upon governmental officials to show the absence of a mental element necessary to convict.
66. It was as if Cheek v. United States, 498 U.S. 192, 199-200 (1991), had never been decided: “The proliferation of statutes and regulations has sometimes made it difficult for the average citizen to know and comprehend the extent of the duties and obligations imposed by the tax laws. Congress has accordingly softened the impact of the common-law presumption by making specific intent to violate the law an element of certain federal criminal tax offenses. Thus, the Court almost 60 years ago interpreted the statutory term "willfully" as used in the federal criminal tax statutes as carving out an exception to the traditional rule. This special treatment of criminal tax offenses is largely due to the complexity of the tax laws. In United States v. Murdock, 290 U.S. 389, 54 S.Ct. 223, 78 L.Ed. 381 (1933), the Court recognized that: ‘Congress did not intend that a person, by reason of a bona fide misunderstanding as to his liability for the tax, as to his duty to make a return, or as to the adequacy of the records he maintained, should become a criminal by his mere failure to measure up to the prescribed standard of conduct.’ Id., at 396, 54 S.Ct., at 226.”.
67. Well-known national surveys have estimated, for instance, that two-thirds of the advice that even IRS employees provide to the general public, when asked, is not free of errors.
68. Yet, Plaintiff was charged, tried, and convicted of willfully violating the IRS Code without having access to his tax files at trial, and sentenced based on the IRS’ estimate of his business gross receipts, accepted matter-of-factly by Real, which included such items as unearned retainers, loans, pass through payments for clients to other firms and vendors with no premium added, trust funds, costs of utilities, books, offices, computer research, and depreciation (Motion 2/24/97).
69. Actually, Plaintiff’s tax records which he was not allowed access to at trial would have proven his good faith belief that he had no net income in the years he was prosecuted for, which returns he would have filed sooner had he not been preoccupied with attempting to comfort, care for, and save his only son’s life.
70. Real, however, was not interested in such facts, for when, at sentencing, where the length of sentence is supposed to be determined under the Federal Sentencing Guidelines based upon the Government’s loss, Plaintiff brought thirteen boxes of his relevant tax records to Court which he had been denied access to at his trial, but Real refused to even consider them: “No, you can’t admit them into the record. We’re not trying the case now. That’s been tried, and the record has been made, Mr. Dubin” (Transcript 1/13/95, p. 36).
71. Moreover, the Plaintiff had not only obeyed IRS directions. He was in the IRS offices being audited for 1986, 1987, and 1988, in conjunction with an already ongoing full-scale field audit being conducted for the tax year 1984, that had been prolonged time-wise due to his son’s illness and eventual death, begun before any returns for those three years in question were even due, as the IRS’s own records showed, yet Real erroneously states in his Findings of Fact No. 14 that the “failure to file a tax return for the years 1986, 1987 and 1988 was discovered by a Revenue Agent from the Examination Division of the Internal Revenue Service during the audit of his filed 1984 U.S. Individual Income tax Return Form 1040.”
72. Even various Government trial exhibits admitted into evidence contradicted Real’s Finding of Fact No. 14, yet Real continued to claim the opposite, with angry intransigence on perhaps the most material good-faith issue in the case, and contrary to the documented facts: “THE COURT: You were not in the IRS office until after you had not filed ’86, ’87 and ’88 returns. MR. DUBIN: All right. Your Honor, that is incorrect. . . . THE COURT: -- that may be incorrect, but it’s in the record, Mr. Dubin. MR. DUBIN: May I show you the letters [in evidence]? THE COURT: No, I don’t propose you to show me that” (Transcript 1/13/95, p. 35).
73. In the local IRS Honolulu Office, Plaintiff and his examiners watched the filing deadlines for 1986, 1987, and 1988 run out – years in which he had no net income, had told the examiners prospectively that he would be delaying filing and why, and had never been told that he was wrong, which one examiner had to admit under oath before Judge Real “went on throughout the audit”: “MR. DUBIN: Did you in any way, in writing, or orally at any time, when I told you about why I didn’t feel I had a filing duty, I think to use your words before, did you tell me that I was incorrect? MS. NAKASONE: No, I did not. MR. DUBIN: Did you tell me I had made a mistake? MS. NAKASONE: No, I did not. MR. DUBIN: Did you encourage me to do any research on the subject? MS. NAKASONE: No, I didn’t” (Transcript 9/14/94, pp. 40, 48-49).
74. This was no ordinary failure-to-file case from the beginning, as the ruthlessness of the manner in which Plaintiff was targeted and prosecuted did not start with Real, who at the last minute was steered to Plaintiff’s case by someone, following a last-minute adroit Government continuance request made by Osborne.
75. The office complaint filed against the Plaintiff, for instance, ignored Plaintiff’s sole proprietor status completely, making it appear to the general public that he had been hiding take-home pay those three years amounting to $1,643,900 – what was actually his total office business gross receipts.
76. And, seeking to capitalize on such exaggerated figures to hang a controversial, high-profile attorney in public, whose civil litigation, for instance, for aggrieved clients against senior IRS officials in the past had surely not endeared him to everyone in the IRS, the issuance by Osborne and Banfe of their false “grand jury” Press Release, supra, on arraignment day virtually crippled Plaintiff’s law practice that day and therefore, hardly coincidentally, his means of paying for his defense.
77. The IRS went out of its way to make it appear in that highly deceptive Press Release that Plaintiff’s prosecution was for felony tax evasion and had been scrutinized by a citizen grand jury, when later, according to the Court, the referenced indictment was unsuccessfully “never returned” by the grand jury (Transcript 9/20/93, p. 24): [Press Release:] “a Federal Grand Jury indicted Dubin earlier this month, for failing to file income tax returns for 1986, when his income was $530,511, for 1987, when his income was $634,100, and for 1988, when his income was $479,289” (Exhibit to Motion 9/20/93).

D. False Findings Of Fact Denied To Plaintiff Any Meaningful Appellate Review

78. Real’s penchant for volatility and for unfairness toward attorneys is well known in the Central District of California, where he was Chief Judge for more than a decade.
79. Based upon the manner in which he presided over Plaintiff’s criminal trial, supra, it is difficult to argue with those of the California Bar who, for instance, have called him “a tyrant who is a disgrace to democracy,” and who frequently compare “Real to the head of the Spanish Inquisition” and “suffering from ‘mental disorders’,” Los Angeles Times, Mary 27, 1985.
80. One of the most respected criminal lawyers nationally, Howard Weitzman, for instance, has been one of the most prominent attorneys in the Central District to publicly dispute the apologetic view that Real is only harsh with lawyers who are unprepared; for according to Weitzman, “I believe I am relatively well-prepared all the time,” yet Real “has yelled at me from the bench in front of juries. He has cut off my examination of witnesses in an abrupt and rude manner;” and “in the cases I’ve tried before him, I don’t believe my clients have gotten a fair trial,” Ibid.
81. The Transcripts of Plaintiff’s trial do not reflect the true tone and temperament of Real during those two days, but for anyone interested in judging his volatility for themselves, since Plaintiff’s misdemeanor trial was considered to be relatively minor in stature by the Court, despite Real’s last-minute assignment to the case as a senior judge and the subsequent thirty-year consecutive prison sentence he handed out and the $131,658.70 fine, the entire trial was tape recorded and copies of the recordings can probably still be obtained and speak for themselves, minus of course the menacing facial gestures that constantly emanated from the bench.
82. It is more than a matter of constitutional irony that not only would Real never be reappointed to the federal bench by Congress again, which is generally conceded probably even by him, were he not now retired (yet still electing to serve on essentially full-time status), but he continues to periodically sit in the District of Hawaii as a Visiting Judge, when surely none of Hawaii’s United States Senators would support his nomination for the Court here.
83. As an end-run, as it were, around the requisite advise-and-consent privileges of local Senators, the federal bureaucracy in the name of efficiency has transformed itself into a mobile bureaucracy which now subjects the residents of our State to jurists from other States such as Real without any say-so by this State’s U.S. Senators.
84. Even worse, as Plaintiff’s experience shows, the federal bench, at least in the Ninth Circuit, with District Judges, for instance, frequently sitting on appellate panels and on circuit executive committees, such as Ezra constantly does, has in many ways become a self-protective “Brotherhood of the Bench,” which Plaintiff discovered when he appealed his criminal convictions. There seems to be little accountability for the new American Caesars, for even so fundamental an ethical proscription that appellate judges should not confer ex parte with trial judges on cases under appellate review is not even honored in the Ninth Circuit, at least according to one Hawaii District Judge who told six attorneys in Chambers, for instance, including the Plaintiff, that he is called up all the time on his appealed cases, although the appellate judges, again quoting him, “are not supposed to do so.”
85. Plaintiff in 1995 filed his first appeal from Real’s judgment while a prisoner at Boron Prison Camp in California, in Case No. 95-10040.
86. During the summer of 1995, after having briefed the appeal, Plaintiff was contacted by the office manager of Circuit Judge Cecil Poole’s San Francisco Office, through a friend of hers also an inmate at Boron at the time, who informed Plaintiff that he had better object to the Ninth Circuit since Judge Poole had his case and since, according to her, he had become grossly senile, was yelling at his office staff continually, that she had had lunch with then Chief Judge Wallace, and that Judge Wallace said that he understood and that if Judge Poole did not take senior status by the end of the year they would have to bring proceedings against him.
87. She also warned Plaintiff that there was a District Judge from Hawaii that was poor-mouthing Plaintiff to Judge Poole, and that Plaintiff should also be concerned about that as well.
88. There was, of course, nothing that the Plaintiff could do with such inside information, except to wonder about the integrity of the Ninth Circuit Court of Appeals and to worry that the outcome of his appeal would be mishandled or prejudiced by one Hawaii District Judge in particular with whom he had crossed swords with many times in past cases -- Ezra.
89. Plaintiff was at the time naïve enough to doubt that report, only to receive his appellate panel’s opinion at mail call the day after Christmas 1995, to find that not only was the Memorandum decision affirming his convictions written by Judge Poole, and that Judge Poole immediately thereafter took senior status and retired, but that reading the decision it was clear that its author had no understanding of either the facts of the case or the controlling law, which anyone with even one year of law school training can verify for themselves.
90. That Memorandum decision, for instance, merely repeated all of Real’s false findings, supra, ending with, as usual, the now totally discredited finding “that Dubin obstructed justice by checking himself into a hospital on the eve of trial,” and with respect to the numerous IRS letters that told Plaintiff he had no filing requirement, upon which Plaintiff said he had relied in addition to the IRS instruction booklets and printed forms, the Memorandum decision merely concludes that, despite Real’s knee-jerk rejection of that evidence on the record, as shown above, “the district judge apparently weighed this evidence.”
91. Plaintiff had been forewarned that despite how unpopular Real was with many appellate judges, who, led by Circuit Judge Procter Hug, Jr., had earlier tried to bring proceedings against him and had failed, friendships with others on the Court of Appeals had prevented any corrective actions against Real except to restrict his case assignments.
92. Plaintiff had complained about not having had his files at trial, supra, and knowing Real’s contrary Finding of Fact No. 11 to have been totally contrived purposely to defeat his appeal, notwithstanding the contrary evidence in the record, including even in Real’s own recorded words, Plaintiff raised the issue in his first appeal, which his panel in its affirming Memorandum merely obliquely dismissed with a simple concluding sentence that “Dubin’s remaining contentions are utterly meritless and warrant no discussion.”
93. After Plaintiff was released from federal prison on the Mainland and finally able to return to Honolulu on October 1, 1996, to a half-way house, shortly thereafter he received a telephone call from attorney James Clement, who for the first time gave him the complete details, not previously known to Plaintiff, how he had gone to Plaintiff’s residence the afternoon of September 13, 1994, picked up the wrong files, returned to the courtroom that first day, and found everyone gone.
94. Additionally, Clement informed Plaintiff that Osborne had been giving Government witnesses hand signals during Plaintiff’s cross-examination of them, out of the sight of the Plaintiff who faced the witnesses at the time, and Clement, obviously nevertheless reluctant to testify against the IRS as were Dr. Wakuzawa and Dr. deVegvar, finally agreed to put all of those firsthand facts in Declaration form (“I sat as a visitor at Mr. Dubin’s tax trial on both days, September 13 an 14, 1994, Judge Manuel Real presiding. I have a vivid recollection of the testimony of Ms. Nakasone (Mr. Dubin’s IRS Examiner), and Mr. Bain (IRS Revenue Agent), and of Assistant U.S. Attorney Osborne sitting at the prosecution’s table, continually shaking his head up and down, or side to side, during questioning of these witnesses by his assistant and during their cross-examination by Mr. Dubin,” Clement’s Supplemental Declaration 4/1/97).
95. At Plaintiff’s trial, two U.S. Marshals sat behind Plaintiff all of the time, and Plaintiff was jailed during even brief court recesses, and overnight, with instructions from Real to the Marshals not to let “the prisoner” speak to anyone (Transcript 9/14/94, pp. 18-19, 89); therefore, the Plaintiff had not been allowed to talk, except through gesturing, with Clement during the trial, who returned to New York while the Plaintiff remained incarcerated at Halawa Prison thereafter until bail monies could be raised.
96. After receiving Clement’s Declaration, explaining that Real’s Finding of Fact No. 11, supra, was false, and revealing that Osborne had been head-signaling testifying Government witnesses during Plaintiff’s cross-examining, Plaintiff filed a new-trial motion on January 21, 1997, also seeking Judge Real’s disqualification – not only due to his past biased behavior before and during Plaintiff’s trial, supra, but since he would be a material witness as to events now being complained of, including his own false findings of fact and perhaps as to any hand-signaling he might have observed from the bench.
97. Continuing to play a cat-and-mouse game with Plaintiff, waiting until his next regular periodic visit to the District of Hawaii, and refusing to say, despite being asked, until at the hearing whether he would allow witnesses to testify, Real did not hear Plaintiff’s motion until March 24, 1997, at which time, refusing even to wait a few days that week so that Clement, in Ithaca, New York State, with bags pre-packed, could attend, Real, not unexpectedly, summarily refused to disqualify himself and denied the motion in its entirety (“We were told through Judge Real’s clerk that he could not decide until the hearing whether an evidentiary hearing would be allowed. Thus, because the airline tickets cost approximately $2,400, I packed and prepared to be there within 24 hours, should Judge Real allow me to testify,” Clement’s Supplemental Declaration 4/1/97).
98. At the hearing, Real denied disqualification based upon Plaintiff’s first appellate panel’s conclusory statement that there had been no prior misconduct on his part, supra, and because Petitioner had raised the issue of his missing files previously in that unsuccessful appeal -- although logically that panel did not have the benefit of Clement’s eye-witness account, a classic example of how judicial error can perpetuate itself notwithstanding any mounting evidence to the contrary (Transcript 3/24/97, pp. 2, 708) (“I also recall completely Mr. Dubin’s disappointment on the second day of the trial when he opened the file boxes which I had brought back from his office (as ordered by Judge Real) and discovered that I had brought him only his copies of the Government’s papers and none of his own defense papers or records,” Clement’s Supplemental Declaration 4/1/97).
99. In his written order, adding to the draft prepared by Osborne, Real penned-in that there was no “newly discovered evidence” – despite the fact that the falsity of his Finding of Fact No. 11 remained evident on the record (or is that what he meant?), now underscored by the sworn statement of the very person who Real claimed brought Plaintiff his files supposedly at the very start of trial that Monday, who the transcript shows was not even sent to get the files until later that same day.
100. Plaintiff’s next, 1998 appellate panel nevertheless, again without oral argument, cryptically affirmed in a two-page Memorandum decision, applying an abuse of discretion standard to Plaintiff’s claims of constitutional deprivations, giving to Real once again the presumption of correctness notwithstanding the obvious false nature of his so-called Findings of Fact and without taking into account that Plaintiff had been incarcerated prior thereto without any knowledge of Clement’s whereabouts, concluding that (a) “Dubin’s new allegations of bias do not evidence ‘a deep-seated favoritism or antagonism that would make a fair judgment impossible,’” and (b) “Dubin waited two years to inform the district court that Clement retrieved the wrong files during trial and to raise his accusation of coaching. As such, Dubin failed to exercise due diligence on either claim.”

E. Plaintiff Was Welcomed Home By Ezra With Phony Rule 11 Sanctions

101. Plaintiff is a consumer rights attorney who in 1982 moved his lender liability law practice to Hawaii, naively unaware at the time that this State, at least heretofore, had been a one-party State whose governmental affairs were being heavily influenced by one dominant Bank and its one principal law firm.
102. It was not long before Plaintiff became embroiled on behalf of clients in major lender liability litigation, for instance (a) opposing the takeover of Honolulu Federal Savings and Loan Association at the time by a former Secretary of the Treasury, (b) uncovering a fraud by a former Hawaii Governor attempting to buy a local golf course by taking an undisclosed sandwich position and then reselling it to his own client for a profit, and (c) counterclaiming against the mishandling of client’s property by the President of the Bank of Hawaii in violation of federal law – none of which representations endeared Plaintiff to such highly influential opposing parties.
103. One such case, which Plaintiff was working on at the time of his trial, was for a Dr. and Ms. Kunimoto against the Bank of Hawaii.
104. Their case had its roots deeply mired in a decade-long financial dispute between prominent Honolulu physician, Dr. Kunimoto, as borrower, and the Bank of Hawaii as his lender, the most prominent, politically influential institution in the State of Hawaii, whose executives and lawyers continue to dominate local politics and have headed and chaired for years, for instance, the State’s powerful Judicial Selection Commission.
105. Dr. Kunimoto and his family, after amassing a net worth of nearly $70,000,000 since late 1971, mostly through real estate investments, aided in part by more than $25,000,000 he had borrowed from a then cooperative BOH, began in 1990 to experience cash flow difficulties, which led to charges of loan defaults and counter-charges of lender interference and account mismanagement, which culminated in nearly a dozen state court lawsuits, including some early collection cases where attorney J. Fidell was appointed a state court receiver for the gross receipts of his medical practice, often leaving the Kunimotos with not enough funds to even pay their personal electric bills or Dr. Kunimoto with enough money to pay his nurses and other office expenses, the most important of which lawsuits included, starting in 1994, Dr. Kunimoto’s multi-million-dollar bad faith counterclaim within what became known as “the five state court consolidated cases” eventually tried in 1997 after Plaintiff returned to Honolulu.
106. Plaintiff had represented the Kunimotos in that litigation before incarcerated, and therefore the Kunimoto’s hired a prominent Mainland lender liability expert, who just prior to Plaintiff’s return in late 1996 had his pro hac vice status in Hawaii revoked and conveniently was run out of town, leaving the Kunimotos without experienced lender liability counsel.
107. Moreover, Dr. Kunimoto, less than one year before trial, found himself and his wife and children, who had also been sued by BOH over alleged fraudulent conveyances, without trial counsel, and without further litigation funds.
108. It was at that critical moment in 1997, to the apparent unforgiving dissatisfaction of BOH, that Plaintiff and attorney Gregg Young, each a sole practitioner, agreed to represent the Kunimotos as trial co-counsel -- who, as a result of a subsequent three-month jury trial, eventually themselves had to swallow over $500,000 in fees and costs, opposing BOH which reportedly paid their attorneys more than $7,000,000 to collect debts less than one-half that size.
109. Previously, Plaintiff had represented Dr. Kunimoto briefly, drafting his original counterclaim against BOH, but did not participate further in the case until returning from federal prison.
110. Expectations of a fair state court trial for the Kunimotos were however quickly dashed when it was learned that the specially-assigned trial judge for the state court consolidated cases had received a sweetheart mortgage from BOH, i.e., below market terms, only weeks before trial, which recordation had at first been disguised as a loan from another institution, and efforts to have her disqualify herself were denied, while efforts to have her removed from the case by the state appellate court were ignored as “premature.”
111. Meanwhile, Plaintiff and Young during trial had even located a confidential informant with personal knowledge that (a) a trial witness in the state court consolidated cases had been the trial judge’s loan officer a few months before, on whose credibility she had made evidentiary rulings during trial, whereas that relationship was never disclosed, and (b) BOH, where the confidential informant had worked as a secretary, had maintained a separate operation there to reward judges and other government VIPs with favorable financial incentives.
112. This information was immediately given to the local prosecuting attorney, to BOH’s knowledge and obvious displeasure, yet characteristically was completely ignored and no investigation even thereafter attempted.
113. As might have been expected, the state court trial did not progress well, and Dr. Kunimoto was prevented by the trial judge from even having the jury consider any of the allegations in his multi-million-dollar counterclaim, except for a few thousand dollars’ worth of relatively insignificant, alleged overpayments, yet the jury took weeks to render a verdict and reduced its award to BOH on its claimed notes substantially, which verdict Dr. Kunimoto immediately appealed.
114. At the start of the state court trial, however, Dr. Kunimoto, his assets approaching zero, was forced to file for Chapter 11 bankruptcy protection, Bk. Case No. 97-03185, yet the automatic stay was immediately lifted to allow the state court trial to proceed even though Dr. Kunimoto lacked funds to pay his attorneys or his trial experts, and Candon, a resident of the City and County of Honolulu, was appointed as Dr. Kunimoto Bankruptcy Trustee.
115. Candon immediately sided with BOH; he sought to terminate Dr. Kunimoto’s Hawaii Supreme Court appeal (alleging it was the property of the Estate), although Plaintiff and Young had offered to brief the appeal without pay, and Candon proposed to enter into a settlement agreement with BOH for virtually no consideration, dismissing the appeal, while at the same time leaving Dr. Kunimoto vulnerable to BOH’s motions to declare various pending, remaining claims against him nondischargeable.
116. It was at that juncture that Dr. Kunimoto begged Plaintiff and Young to seek relief for him and his family in federal court.
117. Three papers were filed in this District Court the first week in June of 1998: (a) a motion to withdraw the reference, assigned to Ezra as Civil No. 98-00463, (b) a companion complaint to the motion to withdraw the reference, pursuant, in part, to Section 1334(b) of Title 28, filed by Dr. Kunimoto, alleging, inter alia, various federal wrongful execution and racketeering counts, assigned to Judge Gillmor, later reassigned to Ezra as Civil No. 98-00453, and (c) a separate complaint, filed by Dr. Kunimoto’s wife, virtually identical to his, but alleging wrongs in her own right, assigned to Judge Samuel King, later reassigned to Ezra as Civil No. 98-00475.
118. It was Ezra who Plaintiff continues to believe purposely steered Plaintiff’s tax case to Real, as Plaintiff had had an acrimonious relationship with Ezra for a decade before, starting when Plaintiff represented a former client of Ezra’s accusing him and his law firm at the time of legal malpractice, and that it was Ezra, sitting at the time on numerous Ninth Circuit committees and appellate panels, who poor-mouthed Plaintiff to Judge Poole.
119. For those reasons, Plaintiff filed a motion to disqualify Ezra, which Ezra referred to retired Judge Martin Pence just prior to his death, and who without a hearing claimed to find no grounds for disqualification.
120. On December 22, 1998, when Plaintiff filed his disqualification declaration, he cited numerous instances of personal bias and prejudice evidenced against him for more than ten years in a dozen or more cases in which Ezra had presided, citing in particular one case where Plaintiff had represented that former client of Ezra who made allegations of legal malpractice against him, and Ezra’s pejorative remarks at the December 7, 1998, sanctions hearing, lambasting Plaintiff’s credibility personally for always portraying himself, for instance, “as a victim. You’re always the victim, Mr. Dubin. Unfortunately, you are not a victim unless you are a victim of your own actions” (perhaps Ezra was referring to Plaintiff’s continued claims that he had been falsely convicted of three failure-to-file tax misdemeanors).
121. Days later, after that filing, Ezra called an emergency hearing, scolded Plaintiff, childlike, for, among other alleged personal failings, once again allegedly always supposedly portraying himself “as a victim” (another reference to Plaintiff’s continued claims that he had been falsely convicted?), while agreeing that, although Ezra did not recall ever being sued for legal malpractice, “had there been some malpractice claim against me that I was unaware of and you prosecuted that claim, I think that it would be incumbent upon me immediately to recuse myself, Mr. Dubin”).
122. The disqualification motion was transferred to the late Honorable Martin Pence, who without a hearing on December 30, 1998, denied Plaintiff’s disqualification motion, which had been joined in by Young, even though former case records were retrieved proving that indeed, in the case cited to Ezra, Plaintiff’s client had made legal malpractice claims, the significance of which for disqualification purposes eventually Judge Pence dismissed on the rather technical ground that the legal malpractice claims were really directed at Ezra’s law firm, in which he was a named partner and the supervising attorney in the case -- not him – surely a difference without a distinction, especially one would have thought, given Ezra’s promise to “immediately” recuse himself were he to learn that there had been such allegations of legal malpractice against him in the past which had slipped his mind.
123. As reflected in this Court’s docket sheets for the consolidated cases, Defendants in those cases moved in unison on August 10 and 17, 1998, with virtually identical filings, to dismiss both complaints, Fidell also asking, in the alternative, for summary judgment.
124. On October 7, 1998, both complaints were dismissed, based exclusively on the ground that only Candon, the Chapter 11 Trustee, had standing to bring those two suits, as reflected in its contemporaneous minute order as shown in entry no. 54 of the docket sheet: “because every claim alleged by Kunimoto originated before he filed for bankruptcy or during the course of the Chapter 11 phase of his bk case, he and his wife lack standing; therefore, because only the Trustee has standing, both Kunimoto and his
wife’s complaints are dismissed (with prej) - by Judge David A. Ezra”
125. After a motion for reconsideration was denied, on December 21, 1998, the Kunimotos appealed to the Court of Appeals in Case No. 98-17419, which was subsequently dismissed by stipulation on February 18, 2000.
126. Plaintiff, who prepared, exclusively signed, and personally filed both complaints, had nonetheless done his homework, notwithstanding a zero litigation budget, and filed both complaints and began to prosecute the cases in the good faith belief that there was supporting case authority to do so:
127. First, Dr. Kunimoto’s complaint was filed in tandem with the filing of a timely motion by him as a Chapter 11 Debtor, as required by local bankruptcy rule 5011-1 and as authorized by Section 157(d) of Title 28, to withdraw the reference back to this District Court; had the reference been withdrawn, the district court would have had Dr. Kunimoto’s entire bankruptcy case before it, including the complaints; naming Candon as a Defendant there was tantamount to requesting to remove him as Trustee, which is within the power of any debtor to do.
128. Second, Dr. Kunimoto’s complaint was filed with the prior consultation and encouragement of his bankruptcy attorney, whom Bankruptcy Judge Lloyd King often referred to as “experienced bankruptcy counsel,” and who reviewed the pleadings before they were filed.
129. Third, Dr. Kunimoto’s complaint was immediately brought to the attention of the Bankruptcy Court with a simultaneous filing there, and Judge King refused -- over Candon’s objection -- to order Dr. Kunimoto to drop the District Court cases.
130. Fourth, the Hawaii Supreme Court had refused to recognize Candon’s claimed exclusive ownership over Dr. Kunimoto’s state appellate rights.
131. Fifth, shortly after the filing of Dr. Kunimoto’s complaint, before the hearing of the motions to dismiss or for sanctions, his Bankruptcy Case was converted to a Chapter 7, which Plaintiff understood to mean that the ownership of any of his causes of action following the filing of his initial Chapter 11 petition reverted back to him as of the date of the original Chapter 11 filing.
132. Sixth, Dr. Kunimoto’s situation was arguably at least a case of first impression, for in Dr. Kunimoto’s situation he faced substantial, nondischargeable debts; indeed Candon in two successive filings even admitted there was at the very least “a clear minority view” in other Circuits supporting Dr. Kunimoto’s position allowing standing.
133. Seventh, Ms. Kunimoto had not filed for bankruptcy; she was not subject to the Bankruptcy Court’s jurisdiction as to her separate causes of action, especially since she was a defendant, with her children, also in the five state consolidated actions, and had had her fair trial rights also individually trampled by the events above described, giving her independent rights to vindicate as a matter of state law, research at the time confirmed.
134. Nevertheless, in his October 7, 1998, Order dismissing both complaints in their entirety, Ezra expressly addressed only the standing issue, ignoring Plaintiff’s arguments altogether, explaining that in his view any advocacy of changes or exceptions to existing Ninth Circuit case law made, even to the precedent of a single Ninth Circuit merits panel, and not even one rendered en banc, will not be tolerated in his courtroom: “The fact of the matter is, Mr. Dubin, as far as you and I are concerned, as far as anything you file in this United States District Court is concerned, the Ninth Circuit controls, unless there is a United States Supreme Court decision to the contrary. * * * * It may even be that the Ninth Circuit in a subsequent en banc decision or in an en banc decision from a panel may change the law. That happens, and it happens often enough so that we very carefully monitor decisions.”
135. That view of course is not shared by everyone in the federal system, especially in the context of Rule 11 jurisprudence (Rule 11(b)(2); Eastway Construction Corp. v. City of New York, 762 F.2d 243, 254 (2d Cir. 1985) (“we do not intend to [apply Rule 11] to stifle the enthusiasm or chill the creativity that is the very lifeblood of the law.
Vital changes have been wrought by those members of the bar who have dared to challenge the received wisdom, and a rule that penalized such innovation and industry would run counter to our notions of the common law itself”).
136. Anticipating that this Court would dismiss both complaints, BOH, Fidell (who later applied for no monetary award), and Candon all filed for Rule 11 sanctions on September 4, 24, and on October 2, 1998, respectively.
137. Despite the many at least arguable justifications for having filed each complaint, Plaintiff and Young were instructed by Dr. Kunimoto that summer to dismiss both complaints nevertheless without prejudice to save costs in all fairness to Plaintiff and to Young as a global settlement of his differences with BOH, Candon, and Fidell was being reached in Bankruptcy Court.
138. Earlier, on August 10, 1998, BOH was the first defendant thereto serve notice of intention to seek Rule 11 sanctions, its lead attorney forced to admit at an August 30, 1999, evidentiary hearing before a Special Master that the Plaintiff representing the Kunimotos had offered, at least by August 31, 1998, to dismiss both complaints without prejudice, which would have been within the “safe harbor” period of Rule 11, since the very next day her time sheet acknowledged that that “stated intent” to dismiss had indeed been received by her, and in any event BOH’s attorney later during questioning admitted that she had extended the safe harbor period “to either Monday or Tuesday,” which would have been either to August 31 or September 1, 1998, and further that Plaintiff representing the Kunimotos at the District Court dismissal hearing before Ezra repeated the offer to dismiss without prejudice to everyone present, including Ezra, as Plaintiff had done in his motion papers on behalf of the Kunimotos.
139. The correspondence between her and the Plaintiff representing the Kunimotos illustrates that a dismissal without prejudice was formally offered, but could not however be filed without BOH’s counsel’s consent, as she well knew, writing in reply: “You called early this afternoon to inform me that you are withdrawing the Complaints in the above-referenced actions. As we have discussed, Fed. R. Civ. P. 41 allows a unilateral notice of withdrawing a complaint only if there has been no answer or motion for summary judgment. In this case, all Defendants have filed for summary judgment, therefore Plaintiffs must proceed by stipulation or motion. I have prepared a stipulation for dismissal with prejudice, for your signature (enclosed). . . . [T]he Bank cannot agree to stipulate to dismiss this matter without prejudice. . . . . If you choose not to sign the enclosed stipulation and do not otherwise take immediate steps to dismiss the Complaints, we will proceed with the Rule 11 motion.”
140. This roadblock to a dismissal without prejudice was also later expressly recognized by Ezra in his eventual sanctions order (“the Receiver’s motion is, alternatively, one for summary judgment. For this reason, Plaintiffs may not unilaterally dismiss the Complaints”).
141. Neither Plaintiff nor Young had the ability to dismiss the two complaints with prejudice during the safe harbor period, as their clients instructed them not to do so, as attested to in two sworn Declarations therein filed by Dr. Kunimoto (“my wife and I instructed Mr. Dubin and Mr. Young not to dismiss with prejudice” . . . “my absolute refusal to dismiss with prejudice . . . offering to withdraw without prejudice”).
142. BOH’s attorneys knew and understood this limitation on Plaintiff’s authority, but appeared in later testimony to completely misunderstand how the safe harbor provisions in the 1993 Rule 11 amendments are intended to and how they actually work: “Q. [by Dubin] Are lawyers able to dismiss cases if their client refused to dismiss? * * * * [objection overruled] A. [by Leonard] probably not. I don’t believe they could and I don’t think that the sanctions were for failing to do it, failing to dismiss with prejudices, it was for filing the frivolous complaints in the first place.”
143. Ezra nevertheless imposed Rule 11 sanctions against Plaintiff and Young in their representation of the Kunimotos, nowhere however explaining in his December 7, 1998, sanctions order how Plaintiff and Young were supposed to have dismissed the two complaints with prejudice against specific, contrary instructions having been received from their clients; instead, without an evidentiary hearing, Ezra found their offer to dismiss without prejudice not to satisfy his understanding of “the spirit of the ‘safe harbor’ provision,” but a negotiating tactic.
144. Ezra additionally concluded that the offer to dismiss without prejudice was only made to BOH and not to Candon, when in fact Candon’s attorney was copied on Plaintiff’s September 2, 1998, written dismissal offer which clearly extended that offer to all parties: “I informed you this week that my clients had decided to withdraw the two above-referenced complaints . . . solely because we believe that it is in the interests of all parties to bring all such related litigation to a close, and we were hoping that by taking that good faith step we would be encouraging all parties, especially the Trustee, to join with us to negotiate a global end to the entire controversy.”
145. In Ezra’s December 7, 1998, sanctions order, he further says that the Plaintiff and Young filed both complaints for the improper purpose of pressuring BOH into accepting a settlement in the related bankruptcy action, and that that conduct by Plaintiff and Young constituted a long-standing pattern of litigious misconduct on their part that the Court expressed its determination to deter.
146. While the inherent power of any District Court in a proper case, with notice and an opportunity to be heard, to discipline attorneys appearing before it is not disputed, and in appropriate cases to then issue monetary sanctions to deter litigation tactics that disrupt court processes or prejudice other parties, in the case of the Kunimotos that alleged “pattern” of misconduct charged did not occur in those consolidated cases, but related to unsworn accusations made by BOH’s opposing counsel in her papers to Plaintiff’s conduct in other cases outside Ezra’s jurisdiction, going well beyond the issuance of Rule 11 sanctions for filing papers in his Court in those cases.
147. Moreover, the sanctions motions not only did not inform Plaintiff and Young beforehand that they were going to be Rule-11 tried for a pattern of litigious misconduct outside the jurisdiction.
148. Ezra indeed began the sanctions hearing by informing counsel that he did not even want to discuss any “Rule 11” factual issues at all, but only “the question whether he [Dubin] offered to dismiss this complaint without prejudice at a very early stage, which offer was rejected . . . I want to confine argument to today because the rest of it is entirely in the [paper] record”).
149. Similarly, Ezra’s December 7, 1998, sanctions order identified no factual basis for his conclusion that either Plaintiff or Young, let alone both of them, had engaged in any such mischievous pattern of misconduct whatsoever, except for its quoting at length out of context from a November 24, 1994, privileged attorney-client fax sent by Plaintiff to his client Dr. Kunimoto which inadvertently found its way into the hands of BOH’s counsel, which she thereafter unethically refused nevertheless to return.
150. That fax, inadvertently provided to BOH by Young during discovery in an earlier state court case, referred to an even earlier federal court case way back in the 1980s which did not even involve Dr. Kunimoto, in which both Plaintiff and Young, according to Ezra’s sanctions order, “described their successful harass-and-delay strategy” – which was at a time when Plaintiff and Young did not even know each other, which referenced cases Young was not even involved in.
151. In truth, had Ezra bothered to provide Plaintiff and Young with their due process rights and to hold an evidentiary hearing on that sanctions issue, or even a serious oral hearing, he would have discovered that that fax in question was referring, not to any penchant or strategy on Plaintiff’s part to run up fees (especially in a case such as that where he and Young were not even getting paid), but to the habit of bank attorneys in Hawaii and elsewhere to gouge their own bank clients, a prophecy that obviously proved true in the Kunimoto cases as far as the amount of claimed Rule 11 fees and costs subsequently showed.
152. An even more disturbing aspect of Ezra’s sanctions order, in specifically quoting from Plaintiff’s November 24, 1994, privileged fax to Dr. Kunimoto, never even properly introduced into evidence before Ezra, was that he chose to completely ignore the three other faxes sent by Plaintiff contemporaneously which BOH also had copies of but chose selectively not to exhibit to the District Court, which however Plaintiff in his defense did, that were also sent years before to his client Dr. Kunimoto, but in the earlier state court cases, specifically urging Dr. Kunimoto to settle before the fees and costs accelerated on all sides – exactly opposite the specious finding, without the benefit of a hearing, made by Ezra to dishonestly justify granting Rule 11 sanctions for supposedly bad faith litigation tactics by Plaintiff and Young (To Dr. Kunimoto From Dubin, 2/3/95: “It is always better to settle quickly if possible [with BOH], as the fees and costs on each side greatly accelerate.” To Dr. Kunimoto From Dubin, 7/20/94: “[T]he best thing to do regarding Bank of Hawaii is to make a settlement proposal . . . . litigation should be a last resort, as it is very expensive and very unpredictable.” To Dr. Kunimoto From Dubin, 11/30/94: “[Do] you want to agree to a global settlement with them [BOH] (this is the opportunity to do so if you want to do so).”
153. Ezra held that he was not invoking any inherent power to punish for bad faith litigation tactics, by further order entered August 31, 1999, stating (a) that he had exercised his authority solely under Rule 11 only, and (b) that Plaintiff had been given a hearing on all issues, even though the December 7, 1998, Transcript shows that that hearing started off by his restricting all oral argument to only the safe harbor issue, supra, and without a single evidentiary inquiry even as to that.
154. Ezra nevertheless arrived at sweeping “inherent power” generalizations, merely rubber-stamping the adversarial arguments of BOH’s counsel: “By ordering sanctions against Plaintiffs’ counsel in this case, the court hopes to put an end to their continued misuse of the federal court system. Frivolous lawsuits filed for improper purposes of harassment and delay will not be tolerated.”
155. Ezra’s December 7, 1998, sanctions order referred the determination of the amount of sanctions to a Magistrate Judge whose reappointment, and therefore whose independence from the influence of the Ezra, was highly questionable at best at the time – who was subsequently not reappointed.
156. Plaintiff and Young were then fined $116,862.32 without being allowed adequate discovery, briefing, or evidentiary hearing time, based in part upon “block billings” which were shown in camera, over their objection, only to the Special Master and which have remained sealed to this day, and the sanctions award adopted by Ezra was contrary in large measure to the fee standards of the Court, and even the requirement of law that a transcript of all proceedings be submitted by the Special Master with his Report was ignored and no such evidence was before Ezra at the time he adopted the Special Master’s Report.
157. Based on all of the above shortcomings, Plaintiff and Young separately appealed to the Ninth Circuit Court of Appeals, after Plaintiff posted $116,000 in cash, borrowed from sympathetic clients and other friends, which he was required by Ezra’s order, over Plaintiff’s written objection, to deposit with the Clerk of the Court, who in turn deposited the $116,000 into a special federal depository account maintained by the Clerk at First Hawaiian Bank at a negotiated interest rate which was and remains substantially below that which any trust deposit for the benefit of BOH and Candon would have earned on those same funds in that same Bank during the appeal.
158. Once again, a Ninth Circuit merits panel, in Case Nos. 00-15157 and 00-15202, merely rubber-stamped the lower court’s findings: “The question before us is whether the district court abused its discretion in either the awarding of or the amount of Rule 11 sanctions. . . . In sum, we find that despite the magnitude of the award, the special master’s lengthy proceedings and thorough 36-page opinion substantiates that the award was within the discretion of the district court” (the beginning and the concluding sentences of the Memorandum decision).
159. Prior to the oral argument, it was disclosed that Judge O’Scannlain, who eventually wrote the Memorandum decision and who showed considerable acrimony toward Plaintiff personally in a later dissent, alone refusing to allow a stay of the mandate, and who was a member of Plaintiff’s panel which affirmed his tax convictions in 1995, was also to hear the sanctions appeal.
160. Believing that it was unfair that the same Judge who ruled unfavorably as to Plaintiff’s good faith in not filing tax returns, and as to Plaintiff having supposedly checked himself into the Hospital to obstruct justice, should make a determination thereafter as to Plaintiff’s good faith with respect to alleged Rule 11 violations on appeal, but as usual the recusal motion was summarily denied without explanation.
161. As with the affirmance of his tax convictions, after being forced by the panel to add another $15,000.00 in cash to his bond in order to stay the sanctions pending further review, Plaintiff sought review by the Supreme Court of the United States as to the Rule 11 award, and once again, not styling itself as an error-correction court, the High Court declined review: Plaintiff’s 1995 Certiorari Petition was denied review in Case No. 96-232 (tax convictions); Plaintiff’s 1998 Certiorari Petition was denied review in Case No. 98-52 (new trial motion); and Plaintiff’s 2002 Certiorari Petition was denied review in Case No. 01-1666 (Rule 11 sanctions).

F. Plaintiff Has Now Been Exonerated By Almost Everyone Except This Court

162. Upon returning to Honolulu as a largely discredited “ex-con” in the perception of some in late 1996, having lost all of his clients and his entire law practice of over thirty years, Plaintiff not only had to contend with certain economic realities, but was instantly hounded by the local IRS Office to complete his back tax returns.
163. Ms. Pamela Mayo was the new Examiner assigned to Plaintiff’s case; some of Plaintiff’s friends retained a local CPA, Mr. Warren Duryea, to assist him in the preparation of his back returns, which was a requirement for his continued one year requirement of “supervised release” (otherwise Plaintiff could be picked up and jailed again anytime), and Ms. Mayo, demanding that the returns be done her way, insisting that Plaintiff’s “taxable income” for the years in question, which she had already calculated for him, totaled $902,035.00 for all three years combined, which was almost double what even Real had supposedly found at Plaintiff’s 1994 trial ($284,452.00 in 1986, $365,130.00 in 1987, and $252,453.00 in 1988), in the process threatened Plaintiff’s CPA with not being able to represent clients before the IRS ever again unless he accepted her numbers, at which point he quit, leaving Plaintiff to do the returns himself.
164. Ms. Mayo, moreover, was not satisfied with the pace of Plaintiff’s progress on the returns, notwithstanding having been responsible for Mr. Duryea’s abrupt departure, and after a bull-in-a-china-shop-like interruption of the Plaintiff and the Presiding Judge while they were in the middle of a three-month jury trial in First Circuit Court, checking up to see if the Plaintiff was actually there, so she said, Ms. Mayo gave a written order to his local Probation Officer, Ms. Merilee Lau, to have Plaintiff arrested and placed back in prison, which thankfully Ms. Lau matter-of-factly ignored.
165. The vengefulness of Osborne, moreover, did not stop with Plaintiff’s convictions, for Osborne filed a complaint with the Hawaii Office of Disciplinary Counsel and with the California State Bar Court, where Plaintiff is also licensed to practice law, demanding that Plaintiff be disciplined, which in Hawaii, for failure-to-file convictions by Hawaii attorneys, has resulted in the past with the issuance of public reprovals, and in California, as a consequence of three relatively recent California Supreme Court decisions there, in a two-year mandatory suspension.
166. However, after a three-year investigation by the ODC, led by staff attorney Michael Lee, Plaintiff became probably the first attorney in American history not to be disciplined for having had a federal failure-to-file conviction, for a jury of Plaintiff’s peers, as it were, by notice of its decision dated January 27, 1998, determined that “a finding of professional misconduct” due to Plaintiff’s “unique circumstances pertaining to your matter” was found “not warranted” (emphasis in the original).
167. Similarly, the Judges of the California Bar Court, where the procedures are more formal, and Real is better known, refused nevertheless to apply the applicable California Supreme Court precedent to Plaintiff’s situation after a five-year investigation, instead burying the matter in an informal settlement which however required, as the lightest option possible, a “public reproval,” which appeared in the June 2000 edition of the California Lawyer and which read more like an a sympathy note than a reprimand: “In January 1994 Dubin was convicted of violation of 26 USC section 7203, failure to file federal income tax returns, from 1986 through 1988. He has since filed the returns but owed not taxes for those years because of business losses. At about the same time he failed to file the tax returns, he was being audited. He received a letter from an employee of the Internal Revenue Service stating that he was not required to file income tax returns for the years covered by the audit. There were no factors in aggravation. In mitigation, at about the time of the misconduct, Dubin was under great stress because his son had been terminally ill and passed away in 1992. The misconduct was due, in part, to the letter he received from the IRS stating that he was not required to file the tax returns. Also, the misconduct did not involve clients.”
168. The assistance of the Probation Department and the Hawaii and California disciplinary authorities, supra, for which words alone will never be able to capture the felt gratitude, protected Plaintiff’s physical and economic freedom and his ability to reestablish his law practice in this State.
169. But it was finally the assistance of this State’s political leadership that secured for Plaintiff the fair audit that he finally received from the IRS Mainland District Office which for the three years in question now proves that Osborne, Peyton, Real, and Mayo were mistaken, reckless, dishonest, or worse.
170. First, in 1994 then State Senator Richard Matsuura took a personal interest in Plaintiff’s case. Not known to Plaintiff before 1994, Matsuura secured an accountant for Plaintiff, who quickly determined that Plaintiff had no taxable income during the three years in question, an opinion which the Arthur Andersen firm also when asked would subsequently affirm, and Matsuura immediately went to friends of his at the local IRS Office with her report, but upon returning, informed the Plaintiff that there was something political going on in his case that was interfering with Matsuura’s efforts to be heard on Plaintiff’s behalf, which he said he was determined to uncover.
171. Second, Matsuura then began to inquire of his many colleagues in the State Legislature, his many friends in the State and Federal Judiciary, and many attorneys he knew in the Hawaii Bar, and was told by virtually everyone contacted, he reported to Plaintiff, that Real was considered by everyone contacted to be an irrational courtroom tyrant, and, more determined than ever, volunteered to continue to try to assist Plaintiff to get a fair hearing; he contacted Senator Inouye and Senator Akaka on Plaintiff’s behalf just prior to Plaintiff’s sentencing, and although they tried to help, and were successful in arranging two meetings with the U.S. Attorney, Osborne was asked to participate at the meetings, made false statements regarding Plaintiff’s past filing practices, which Plaintiff later found out embarrassed Senator Inouye especially and thwarted and scuttled Matsuura’s efforts as the U.S. Senators he contacted had no means of countering Osborne’s misrepresentations designed to cast the Plaintiff in a further false light.
172. Third, unfortunately, shortly after Plaintiff returned to Honolulu, Matsuura was diagnosed with cancer and passed away, but not before having had breakfast with the Plaintiff and having fully informed the Plaintiff what he had learned in the interim regarding who had politically targeted him and who had had Real switched in place of Kurren to be his presiding trial judge.
173. Fourth, Plaintiff followed up on his own as Matsuura had suggested, and contacted Senators Inouye and Akaka and Congressman Abercrombie and Congresswoman Mink for assistance directly, seeking to have Plaintiff’s IRS audit transferred to the Mainland District Office and to an impartial Examiner.
174. Fifth, ironically, Plaintiff had enjoyed excellent professional relationships for decades with IRS agents, had himself a high appreciation for their fairness in his personal experience, had never been exposed to any rudeness or unprofessional conduct on their part before his recent ordeal with the Criminal Investigation Division, and even his 1994 local Examiner, Ms. Janet Nakasone, was a pleasure to work with, although it is difficult now to forgive her less than always truthful, perhaps coerced, testimony at his trial.
175. Sixth, the next-to-final breakthrough in Plaintiff’s exoneration came when, after Senator Inouye and Senator Akaka and Congressman Abercrombie led the way, writing the IRS on Plaintiff’s behalf seeking in unison to move the audit of his returns to the IRS Mainland District Office, the late Congresswoman Patsy Mink’s tenacity finally resulted in what proved to be the turning point in Plaintiff’s relations with the IRS – for, at her dogged insistence, on November 6, 1998, she finally heard from the Department of the Treasury that they would find a guaranteed impartial IRS Revenue Agent at the Mainland District Office who would “provide an immediate and unbiased review of any information and documentation Mr. Dubin would like to submit,” and that is what finally did happen, which speaks highly of the integrity of the IRS to have now been willing to admit that their agents in Honolulu were wrong.
176. Seventh, now Plaintiff also has sworn statements from attorney Clement, Dr. Wakuzawa, and Dr. deVegvar, supra, all of which prove that Real’s Findings of Fact in most material respects were completely erroneous or worse.
177. It is time for this Court also to act to correct the injustice inflicted on this Plaintiff when this Court allowed Real, as a Visiting Judge, to preside so unfairly over Plaintiff’s tax trial, while Plaintiff was forcibly handcuffed on his orders and taken directly from his Hospital bed to the Court House, ill and sedated, without counsel and without his tax or case files, tried by secret ex parte communications between Real and Osborne and Peyton, belittled in front of a packed courtroom, trashed in the media, convicted on false findings of fact so as to defeat any appeal, and then railroaded into a prison cell, and, upon being released and returning to Honolulu, to be next fined $116,862.32 by a local District Judge who most Members of the Hawaii Bar know to be a younger version of Real, a totally defensive individual who is completely lacking in judicial temperament.

G. Plaintiff Prays For Relief From Fraud Upon The Court

178. This is not an action based upon newly discovered evidence; this is an independent action seeking relief grounded upon fraud having been committed upon this Court by officers of this Court, Hazel-Atlas Glass Co. v. Hartford-Empire Co., 322 U.S. 238 (1944) (where an attorney had participated in the fabrication of trial evidence). That is the basis of this Court’s jurisdiction in this case.
179. None of the issues raised in this Complaint were decided in prior cases or on appeal, for the prior cases were decided by Judges, the honesty of whose decisions are being challenged here, and because the prior appeals were decided giving due difference to the very findings of fact below which are here being challenged as intentionally contrived.
180. The need for redressing “fraud upon the court” Justice Black explained in Hazel-Atlas Glass, 322 U.S. at 246, in the following terms: “[T]ampering with the administration of justice in the manner indisputably shown here involves far more than an injury to a single litigant. It is a wrong against the institutions set up to protect and safeguard the public, institutions in which fraud cannot complacently be tolerated consistently with the good order of society. Surely it cannot be that the preservation of the integrity of the judicial process must always wait upon the diligence of litigants. The public welfare demands that the agencies of public justice be not so impotent that they must always be mute and helpless victims of deception and fraud.”
181. First, Plaintiff seeks the setting aside of his three misdemeanor failure-to-file convictions for fraud upon the court committed by Real, Osborne Peyton, and Banfe, all lawyers and officers of the court, and the dismissal by the IRS and the USA of the Criminal Complaint that was filed against the Plaintiff, plus the return of his $131,685.70 fine with market-interest thereon, together with his fees and court costs since August 27, 1993:
a. on substantive due process grounds, in that the IRS Mainland District Office has now cleared him of having had any taxable income for any of the three years in question,
b. on procedural due process grounds, in that as a result of their secret, false, ex parte communications to, and accepted and acted upon by, the trial judge, Plaintiff was tried without his files, while ill, sedated, and deprived of sleep, and
c. on both substantive and procedural due process grounds, in that the trial judge falsified material findings of fact stating, by way of example only, that the trial court had verified that the Plaintiff was in good health and that he had had his files commencing the morning of trial.
182. Second, Plaintiff seeks monetary sanctions individually against Real, Osborne Peyton, and Banfe, all lawyers and officers of the court, and against the IRS and the USA pursuant to the doctrine of respondeat superior to the fullest extent permitted by law and to the extent that restitution cannot be fully secured from each of the four of them, for the aforesaid fraud upon the court as compensation for the resulting loss of liberty and property caused the Plaintiff, together with his fees and court costs since August 27, 1993:
a. against Real individually, on the basis that judicial immunity does not protect judges from civil liability and/or providing restitution in the case of their criminal wrongdoing in intentionally entering upon the public record false findings of fact, a form of official perjury, and
b. against Osborne, Peyton, and Banfe, each individually, on the basis that prosecutorial immunity does not protect prosecutors in the performance of investigative work, which is precisely the function which was being carried out by them when they conspired to and did defraud the Court by conspiring to provide and by providing false ex parte information to Real concerning Plaintiff’s health and supposed discharge from the Hospital, an egregious ethical breach under applicable Local Rules of Professional Conduct.
183. Third, Plaintiff seeks the setting aside of his and Young’s Rule 11 sanctions, aforesaid, for fraud upon the court committed by Ezra, a lawyer and an officer of the court, plus the return of Plaintiff’s now $131,000 cash supersedeas bond being held by the Clerk of the Court, with market-rate interest thereon, together with both of their fees and court costs since September 4, 1998:
a. on substantive due process grounds, in that Plaintiff and Young had clearly offered on the record repeatedly to dismiss both complaints without prejudice as to all parties and fully within the safe harbor period and were otherwise powerless to dismiss with prejudice due to the contrary instructions of their clients, notwithstanding contrary false findings of fact entered by Ezra, a form of official perjury,
b. on substantive equal protection grounds, in that the Rule 11 sanctions entered against them are in conflict with this Court’s applicable Local Rules being applied substantially differently to fee allowances otherwise being granted by this Court to others,
c. on procedural due process grounds, in that, by way of example only, they were denied access to BOH’s in camera submissions to the Special Master, adequate evidentiary time in which to take testimony, and a transcribed evidentiary record of the Special Master’s proceedings for review by the District Judge as required by law,
d. on both substantive and procedural due process grounds, in that Ezra falsified material findings of fact stating that the trial court had personal knowledge of a pattern of joint misconduct by Plaintiff and by Young in other cases and in other jurisdictions, especially supposedly at a time that the two did not even know one another, and
e. on both substantive and procedural due process grounds, pursuant to Sections 144 and 455 of Title 28 of the United States Code, and the Code of Judicial Conduct, for having failed to recuse himself after acknowledging that he would do so if allegations of legal malpractice had been made against him by one of Plaintiff’s former clients during Plaintiff’s representation of that client, which was subsequently documented as true.
184. Fourth, Plaintiff seeks monetary sanctions individually against Ezra, a lawyer and an officer of the court, for the aforesaid fraud upon the court as compensation for the resulting property caused the Plaintiff, together with his fees and court costs since September 4, 1998, on the basis that judicial immunity does not protect judges from civil liability and/or providing restitution in the case of their criminal wrongdoing in intentionally entering upon the public record false findings of fact, a form of official perjury.
185. Fifth, Plaintiff seeks the issuance of a mandatory injunction against the Judicial Council, ordering it to fulfill its mandated responsibilities under the Judicial Councils Reform and Judicial Conduct and Disability Act, heretofore neglected, to investigate the charges against Real and Ezra contained herein and to thereby fulfill its mandated responsibilities pursuant to the Good Behavior Clause of Article III, Section 1 of the United States Constitution.
186. Sixth, Plaintiff seeks the issuance of a mandatory injunction against Chinn, ordering the Clerk’s Office through him to immediately transfer and to maintain Plaintiff’s supersedeas cash bond aforesaid pertaining to Plaintiff and to Young’s Rule 11 sanction, supra, in a separate interest bearing account at First Hawaiian Bank earning the highest rate of interest possible until further orders of this Court.
187. Seventh, BOH and Candon are named herein as Nominal Defendants for notice purposes, being otherwise necessary and indispensable parties to the Rule 11 sanctions’ relief being sought herein.
188. Plaintiff finally seeks by this Complaint to have his good name restored to him, and to be free of the continued personal and professional defamation that the official wrongdoing referenced above continues to generate against his financial and emotional security and well-being in and outside this State.
189. Plaintiff’s daily pain in this regard has not been rendered moot by the passage of time, and is more than a mere theoretical concern, as evidenced by the potentially daily ridicule and false light that his misdemeanor tax convictions and their aftermath, for example, cause him whenever his name for whatever business or personal reason is entered on Internet search engines, which automatically retrieve misleading information as that shown in Exhibit “A”, unfairly dwarfing his otherwise spotless record shown by comparison in Exhibit “B”, which disgusting defamation can only be deleted once his false tax convictions are set aside, triggering the removal by the California Bar Court, for instance, of his minor California public reproval, supra.

DATED: Honolulu, Hawaii; February 10, 2003.

/s/ Gary Victor Dubin
___________________
GARY VICTOR DUBIN
Attorney for Plaintiff

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