Letter to the Ninth Circuit Court of Appeals

Post 6/23

In my last post on October 19, I stated that there would be a constitutional crisis if the Ninth Circuit Court of Appeals did not reverse its ruling relative to my appeal. I also stated that the court's ruling was void and I had no intention of complying with it as it currently stands. Today I am posting a letter I sent to the Ninth Circuit Court of Appeals Clerk of Court Molly Dwyer and the Panel that heard my appeal. My purpose for the letter is to make it clear to the court and the City of San Jose that I will not be bullied into relinguishing my rights.

              

Frederick Bates

Folsom, CA 95630

(408) 510-

                                                                                                           

October 15, 2015

Molly Dwyer, Clerk of Court

United States Court of Appeals for the Ninth Circuit

Post Office Box 193939

San Francisco, CA 94119-3939

Re: Frederick Bates – Appellant v. City of San Jose; et al – Appellees; No. 13-16397 and D.C. No. 5:06-cv-05302-RMW

To Clerk of Court Molly Dwyer and the Panel hearing my appeal (Canby, Bea, and Murguia, Circuit Judges):

On August 14, 2015, I filed a petition for panel rehearing. My petition argues that the ruling of this court on my appeal is a void judgment because it relies on the written order of the district court purported to be on the merits. As I argued in my petition, the district court’s written order is void because the court had already granted the City a default judgment by way of their dispositive “motion to dismiss” in the hearing on April 26, 2013, because I failed to appear. The default judgment divested the district court of jurisdiction to enter its written order. The district court made an apparent attempt to reconcile the contradiction in its judgment from the bench and its written order in a letter in October 2013, months after this court had already acquired jurisdiction. Therefore, the district court lacked jurisdiction to amend or modify its judgment. For this reason, the letter of the district court does not change the default judgment it entered during the hearing. The written order is a nullity. The judgment of this court is void as well because it affirms the written order of the district court. There can be no credible argument made in opposition to this fact.

The purpose of this letter is not to reargue my petition, but to strongly encourage this court to immediately grant my request for a rehearing and reverse the decision affirming the void judgment of the district court based on its written order. The order of this court is nothing more than an attempt to give legitimacy to the district court’s ruling that granted the City’s motion for summary judgment. Unfortunately, this draws attention away from the merits of this case and the clear and convincing evidence of fraud perpetrated by district court officials and the City relative to the hearing on my motion for relief from judgment. My fraud claims are addressed in my motion to vacate judgment dated September 23, 2014.

The judgment of the district court granting the City’s summary judgment motion will never gain legitimacy and will always be void and unenforceable under the law; because the district court failed to follow the mandate of Article IV, Section 1of the United States Constitution (Full Faith and Credit Clause). Article IV, Section 1 is implemented by 28 USC, Section 1738 (Full Faith and Credit Act). The Full Faith and Credit Act command federal courts

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to follow the preclusion law of the state from which a judgment is taken. Federal courts have no discretion at all when it comes to applying preclusion rules to state court judgments. This has been settled law from nearly the beginning of our republic. It is unarguable that the district court failed to follow the preclusion law of California and employed its own rules when it granted preclusive effect to the small claims judgment at issue. California courts will not grant preclusive effect to the small claims judgment because there was no actual litigation or a determination of the issue I raised in my complaint. Furthermore, there is no record at all of what transpired in the small claims hearing.

In affirming the written order of the district court, this court opined that the district court properly determined that I was not entitled to relief under Rule 60(b)(4) because the district court’s “prior” judgment was not void due to jurisdictional error or a violation of due process. The Supreme Court’s ruling in the Espinosa case was cited as the authority. The Espinosa case establishes that Rule 60(b)(4) applies only in the rare instance where a judgment is premised either on a certain type of jurisdictional error or on a violation of due process that deprives a party of notice or the opportunity to be heard. My motion for relief under Rule 60(b)(4) does not conflict with the Espinosa case. I argued in my motion that the district court’s “prior” judgment is void under Rule 60(b)(4) because it gives preclusive effect to the small claims judgment that is constitutionally infirm. The small claims judgment is constitutionally infirm because I was deprived of the opportunity to be heard during the hearing in small claims court. Therefore, the order of the district court that gives preclusive effect to the small claims judgment is void for the same reason. It is reasonable to conclude that my motion is appropriate under Rule 60(b)(4). This argument, however, is not meant to change in any way my position that the default judgment of the district court based on the motion to dismiss it granted to the City is the only judgment that this court can legitimately base its ruling. I maintain that the written order of the district court is a nullity and the judgment of this court affirming the written order is a nullity as well. Furthermore, there is no procedural bar to providing me relief from the void judgment of the district court as the ruling of this court seems to imply. As stated in my petition, my motion for relief would also have been appropriate in an independent action; or the courts could have provided me relief sua sponte.

Again, I encourage this court to grant my petition for a panel rehearing and reverse its ruling on my appeal. A failure to do so will result in a constitutional crisis because, as noted above, it is indisputable that the ruling of this court as it currently stands is in violation of Article IV, Section 1 of the United States Constitution (Full Faith and Credit Clause) which is implemented by 28 USC, Section 1738 (Full Faith and Credit Act). Therefore, the current ruling of this court that precludes my lawsuit against the City of San Jose on the basis of collateral estoppel is a void judgment. It is unenforceable just as all of the other judgments that preclude my lawsuit on the basis of collateral estoppel. It is inconceivable that the courts would apply collateral estoppel in this case when there is no record of what transpired in the small claims hearing. Both the district court and this court have simply used creativity and wishful thinking in applying collateral estoppel. Simply put, if there is no record, collateral estoppel cannot apply.

Additionally, I argued in my petition, and on appeal, that the stipulation of dismissal of Defendant Tuck Younis is also void because it was entered without my consent, I received no benefit from it, and it impaired my cause of action. The actions of my attorney and the City in

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dismissing Younis without my authorization deprived me of an absolute right. My motion for relief from the stipulation of dismissal is also proper under Rule 60(b)(4) because I was deprived of the opportunity to be heard on my cause of action as to Defendant Younis. The stipulation of dismissal was not addressed by this court.

A failure of this court to reverse itself all but ensures that litigation will not end, because the current ruling of this court is void by law and I am under no obligation to comply with it. I will not be bullied by the courts or the City into relinquishing my rights in this matter. This means that more judicial resources will be wasted; and it will also create a very uncomfortable situation. I appeal to the conscience of the court to provide me the relief I am due by law; because relief from a void judgment is not discretionary, it is mandatory.

                                                                                                Sincerely,

                                                                                                Frederick Bates

Constitutional Crisis and Confrontation

Post 5/23

The cheating scandal exposed in my prior posts involving San Jose city officials and the federal courts shows that there is a constitutional crisis in America. The US Constitution is under direct attack by our federal courts, particularly the Ninth Circuit Court of Appeals and many of the district courts in the circuit. At no time in history, except for blacks during slavery and Jim Crow, has the Constitution been so meaningless. This is due primarily to public corruption instead of racism. People of all races are having their rights violated by the courts because of this corruption. Dont get me wrong. Im not saying racism has been completely eliminated. What I am saying is that corrupt government officials such as the San Jose city officials and the federal court officials I have exposed in this blog are as bad, and in some cases, worst than most of the segregationist government officials in the South during Jim Crow, when it comes to discrimination and regard for civil rights. I know that that statement might be controversial or provocative; but I believe it is true. I am black, I'm 60 years old, and I grew up in the South during Jim Crow and the Civil Rights Era, therefore, I have personal experience to draw upon. However, I want to make one thing very clear. I am only speaking for myself and my experience. Quite naturally, others may have had experiences that are totally different from mine. It is my hope that this post will be viewed from this perspective.

My reason for writing this blog is that I am totally shocked and appalled by the total lack of regard for the Constitution and the rule of law by the government officials involved in this scandal. I dont normally do things like this, but I am compelled to do so because the integrity of our courts and the security of our nation is at stake. According to the FBI, public corruption cases are given priority. Yet, all the FBI has given me is the runaround relative to my complaints about this matter. The same thing has occurred with my complaints to the House Judiciary Committee, the California Attorney General's Office, and the Santa Clara County District Attorney's Office. All of these folks took an oath to protect and uphold the Constitution. Yet, they have stood by and allowed the goverment officials in this scandal to trample all over the Constitution as if it was a dirty rug. Much of the conduct by these officials is criminal in nature (See my post on 9/27/15). It is clear to me that there is a loose conspiracy among the government to hide what appears to be widespread corruption and cheating in the courts. Shame on them! The government is so quick to address cheating in sports. But when it comes to cheating in the courts which is far more damaging, they have failed to provide the checks and balances provided for by the separation of powers doctrine of the Constitution. The lower federal courts have, in many cases, flat out refused to follow laws passed by Congress. Rather, they have legislated their own laws from the bench and has dared the other two branches of goverment to do anything to stop them.

It is time for the citizens of this country to stand up to these corrupt officials and say, enough is enough! That is precisely what I am doing with this blog. I am fed up, and I am mad as hell. It is enough to live through Jim Crow once; for the federal courts to force me to live through a similar experience a second time is a bunch of crap. As I explained in my prior posts, this cheating scandal revolves around a lawsuit I filed against the City of San Jose for violating my civil rights. I am not going to restate all the details since they are discussed in prior posts (See post on 8/23/15) and my group facebook page. I am only going to mention situations in which the courts have outright defied the US Constitution and made rulings based on their subjective feelings. One situation involve the application of collateral estoppel to a small claims judgment (state court judgment). When applying the preclusive effect of a state court judgment, the Constitution requires that federal courts follow preclusion law of the rendering state. Judge Ronald M. Whyte of the US District Court -San Jose Division said nope, I will apply my own rules. Judge Whyte also allowed San Jose attorneys to file a fraudulent stipulation of dismissal of a defendant (Tuck Younis) in clear violation of federal statutory law and the Due Process Clause of the US Constitution. His judgments are void. He has wasted his time and my time by entering them. The Ninth Circuit Court of Appeals has also wasted their time and my time by affirming Judge Whyte's bogus judgments.

The Ninth Circuit Court of Appeals has one more chance to get it right based on a request for a panel rehearing I filed on 8/14/15. If not, a constitutional crisis looms and there will be a confrontation between me and the courts over this matter. Hold your horses! I dont mean to suggest in any way I will be marching down to the courts with a militia in tow or that I will engage in some violent act. I detest violence. What I am saying is this. I cannot be lawfully bound by the current judgments of the US District Court and the judgments of the Ninth Circuit Court of Appeals that affirms them because they are void and are tainted by substantial fraud. It is my sincere hope that a confrontation can be avoided by the Ninth Circuit reversing itself and following the law. Otherwise, I will not be voluntarily bound by the current void judgments; and I will use any lawful means at my disposal to challenge them. You can access my group facebook page at this link https://www.facebook.com/groups/624131267713226/ for additional details. 

Message to San Jose Mayor Sam Liccardo and the San Jose City Council - Fire City Attorney Richard Doyle!

Post 4/23

If you have read my prior posts, you know that I have accused Mayor Liccardo and the City Council of covering up criminal misconduct by the San Jose City Attorney's Office and the federal courts relative to a lawsuit I filed against the City. Many of the criminal acts relate to public corruption and are felonies. As stunning as these allegations are, they are true. Please read my third post in order to see my specific allegations and evidence to support them. Even though City officials and federal court officials have not denied my allegations, there hasn't been an investigation into this matter at any level, just a cover-up.

The reason I am singling out City Attorney Richard Doyle to be fired is that he has run his office as if it is a criminal enterprise based on my case alone. His judgment in this matter has been one of the worst cases of poor judgment I have ever seen. The evidence of extremely poor judgment does not stop here. As I stated in my open letter that is Post #1, the City's very own propaganda apparatus, the San Jose Mercury News, implied that Mr. Doyle used poor judgment and unethical tactics during the litigation of several high profile cases the City lost, costing taxpayers millions of dollars.

Mr. Doyle was given several opportunities to resolve the issue surrounding my lawsuit. That issue is the denial of my CCW permit, without a hearing, upon my retirement from the police force in 2004. CCW permits are very important to retired police officers because they provide personal protection and possible financial opportunities. Another important reason exists as well. Armed and well trained retired police officers can provide additional protection to their communities in these days of mass shootings and threats from terrorists. The issuance of CCW permits to retiring police officers is about a routine a matter as there is by the SJPD. Protocol is in place to ensure that officers' due process rights are protected. The CA legislature made sure of this by requiring that law enforcement agencies provide an officer a full adversary due process hearing if the agency wants to deny a retiring officer a CCW permit in all cases, except for psychological disability retirements. The hearing requirement is a very important right that is protected by the Fifth Amendment Due Process Clause according to the US District Court. The SJPD and City policy provide additional due process protections as well. Yet, Mr. Doyle and several police officials denied my CCW permit several times by failing to follow protocol and rejecting authoritative information that they stated was "crystal clear" I was entitled to a CCW permit. Their acts were flagrantly discriminatory and punitive and was done with the clear intent to inflict emotional distress and cause me financial harm.

More disgusting than City officials' decisions to deny my CCW permit knowing that their decisions were wrong, is the fact that they rejected several opportunities when I reached out, let me correct that, begged them to work with me in resolving this issue. I asked a police official (Captain Tuck Younis) if we could resolve this matter without me having to hire an attorney and turning this into a "federal case." I pointed out that at that time there had not been any cost to me or the City. He said no. When I asked him if there was anything I could do to resolve this issue without having to hire an attorney, he said no. I was left with no choice but to seek legal representation that cost me several hundred dollars.

City officials later acknowledged that their decisions to deny me a CCW permit were wrong. Yet in 2005 and 2006, Mr. Doyle and the City Attorney's Office wasted several opportunities I provided to settle a claim I made for compensation for the financial loss I suffered when I hired an attorney. This was done in spite of the fact that I said I would swallow my pride and agree not to file a lawsuit against the City for emotional distress, punitive damages and other financial loss. Mr. Doyle rejected these offers that would have cost the City as little as $1,000. Rather, he chose a path that resulted in litigation in federal court in 2006. This litigation has cost the City thousands of dollars. My estimate is that the City's legal costs are in the neighborhood of $200,000. However, the worst part of this fiasco is the criminal misconduct by the City Attorney's Office and the federal courts relative to my lawsuit and the cover-up by Mayor Liccardo, the City Council and other entities of the City. As I stated in one of my prior posts, the decisions of the courts relative to my lawsuit are void judgments; and I will not be voluntarily bound by these void judgments that are tainted by fraud. My case is now pending action by the Ninth Circuit Court of Appeals.

Again, here is my message to Mayor Liccardo and the City Council: FIRE CITY ATTORNEY RICHARD DOYLE and initiate an investigation into this matter immediately per City policy. If not, it is only going to get worse. City leaders should keep in mind that Mr. Doyle could have gotten the City out of this mess for as little as $1,000, as opposed to, the estimated $200,000 and counting the City has spent on litigation. For additional details, please access the following link: https://www.facebook.com/groups/624131267713226/

Complaint Letters to the FBI and the Santa Clara County Civil Grand Jury

Post 3/23

To support my claim of a cover-up of a cheating scandal involving the San Jose City Attorney's Office and the federal courts, I am posting two complaint letters I filed with the FBI and the Santa Clara County Civil Grand Jury. The letters list the names of San Jose city officials and federal court officials involved in the scandal and the crimes I believe they committed. The FBI refuses to state whether or not an investigation is being done or if my complaint has been assigned to an agent. The Civil Grand Jury simply stated that my complaint warranted no action by the Grand Jury without explanation. This is shocking that a group of citizens that are supposedly non-partisan could come to this conclusion with so much evidence of criminal misconduct by San Jose city officials. This corruption has cost San Jose taxpayers thousands of dollars. Even though the cheating in this case is far more egregious that the alleged cheating by the educators in Atlanta, not a single one of the cheaters in this case has been held accountable; whereas, many of the educators in the Atlanta cheating scandal have been sentenced to prision. What a disgrace!

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                                                                                                 Frederick Bates

                                                                                                                 ----------------
                                                                                                                 ----------------

                                                                                                                                                

May 24, 2014

Federal Bureau of Investigation

450 Golden Gate Avenue, 13^th Floor

San Francisco, CA 94102-9523

Attn: David J. Johnson – Special Agent in Charge

Re: Public Corruption Complaint

Dear Mr. Johnson,       

            Please accept this letter as my formal complaint against officials for the City of San Jose, the U.S. District Court for the Northern District of California – San Jose Division and the Ninth Circuit Court of Appeals for public corruption relative to a federal lawsuit I filed against the City of San Jose and three retired police administrators. My lawsuit was filed in August 2006 on the basis that police administrators deprived me of my constitutional right to due process by denying my concealed weapons permit (CCW), without a hearing, upon my medical disability retirement from the San Jose Police Department in April 2004.

 During the course of litigation, San Jose city officials and the courts have violated several laws relating to public corruption. The misconduct I’m alleging is mostly related to a summary judgment motion filed by the City of San Jose in October 2007 and two Rule 60 motions I filed in February 2013. Gross misconduct also occurred during my attempt to resolve this issue in Small Claims Court in 2005 and 2006.

As to my allegations against officials for the City of San Jose, my allegations are as follows:

·        City Attorney Richard Doyle, Assistant City Attorney Nora Frimann, former Deputy City Attorney Michael Dodson, former Chief of Police Robert Davis, former Assistant Chief of Police Tuck Younis and former Deputy Chief of Police Adonna Amoroso conspired to present false testimony in the depositions of Younis and Amoroso in June 2007, relative to my federal lawsuit.

·        Younis and Amoroso did, in fact, commit perjury in their depositions. Several of the perjured statements by Younis and Amoroso were used by Doyle, Frimann and Dodson in support of the City’s summary judgment motion which was filed in District Court with the clear intent of perpetrating fraud on the court.

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·        Younis, Doyle, Davis and Deputy City Attorney Carl Mitchell were in contempt of court because they refused to appear in Small Claims Court in response to their subpoenas in 2005 and 2006. No action was taken by the Small Claims Court for their misconduct.

·        Doyle, Frimann and Dodson conspired with my former attorney, Stuart Kirchick, to obstruct justice by fraudulently stipulating to the dismissal of Tuck Younis from my lawsuit without my knowledge or consent, then misrepresented to the court that I had agreed to the dismissal. The dismissal provided me no benefit whatsoever, and the clear purpose of the dismissal of Younis was to sabotage my case because the evidence is irrefutable that Younis violated my constitutional rights. It is reasonable to conclude that the dismissal of Younis resulted from a quid pro quo arrangement. This implicates the criminal act of bribery. It should also be noted that Kirchick withheld other key evidence from the courts.

·        The San Jose City Attorney’s Office engaged in criminal misconduct by conspiring with U.S. District Court officials to falsify court documents and to stage “pretense litigation” on my Rule 60 motion filed in February 2013. My Rule 60 motion seeks relief from the order granting the City’s summary judgment motion. This allegation is addressed further in this letter.

·        At all times the above officials were aware that their actions constituted criminal misconduct and obstructed justice.

·        The San Jose City Attorney’s Office violated several other rules of civil and appellate procedure, as well as, rules of professional conduct.

·        Mayor Chuck Reed and his former Agenda Services Manager (Sara Wright), the San Jose City Council, former City Manager Debra Figone, former City Clerk Dennis Hawkins, current City Clerk Toni Taber, the San Jose Elections Commission and the Office of Employee Relations and its former director (Deputy City Manager Alex Gurza) failed to take action on the criminal misconduct of the City officials named above. It is clear that City officials are engaged in a cover-up and that several officials appeared to have prospered as a result of their misconduct by receiving promotions or high paying positions outside the city.

            My allegation of public corruption against officials of the United States District Court relate to a scheme by court officials to conduct a fraudulent hearing on my Rule 60 motion without my knowledge. In order to carry out this scheme, Courtroom Deputy Jackie Garcia and another court official (initials “bw”) falsified docket entries by mischaracterizing my motion as pertaining to “costs taxed.” My motion was not based on “costs taxed.” It was based on false statements made by the City in its motion for summary 

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judgment; and on the failure of the courts to follow mandatory federal law in their application of collateral estoppel. In order to prevent my appearance at the hearing, Court Clerk Cita Escolano provided me with false information that no hearing would be held on my motion. Escolano falsely stated that my motion would be decided on the papers submitted; and that the decision of the court would be sent to my residence. Escolano also told me that I did not have to appear in court on the April 26, 2013 hearing date, knowing fully that a hearing was planned. I have a witness that will corroborate these claims.

The hearing on my motion was held in front of Judge Ronald M. Whyte. According to the transcript, the court disposed of my motion by granting a “motion to dismiss” by Deputy San Jose City Attorney Richard North because I failed to appear. However, no motion to dismiss by the City appears in the transcript or anywhere in the record. The City’s motion to dismiss is a mystery. It appears that the City’s mystery motion to dismiss was either intentionally omitted from the official transcript or it was made ex parte. The court has failed to provide an adequate explanation for the City’s motion to dismiss other than to make the dubious claim that the City did not make a motion and that the court meant to say that my motion for relief was denied, rather than, the motion to dismiss [by the City] was granted. Yet, the court has refused to vacate its admittedly incorrect judgment or correct the falsified court records.

            Further evidence that the hearing on my motion was not legitimate is that the minute entry (Civil Minutes) account of the hearing totally differs from that of the official transcript. As noted already, the transcript reveals that my motion was disposed of by a mystery motion to dismiss by Deputy City Attorney Richard North because I failed to appear. However, the Civil Minutes’ reveals that the court made a ruling during the hearing that my motion was untimely and that I failed to present adequate evidence to support my theories for relief. Even if this ruling was legitimate, which it is not, it would be absurd because it is unquestionable that there are no time limitations on motions based on void judgments and fraud on the court under FRCP Rule 60. After judgment was entered, court officials refused to notify me as promised. The conflicting accounts of the hearing on my motion and the court’s refusal to notify me of its ruling are clear evidence of intentional fraud and a cover-up.

            While it is unclear what role Judge Whyte played in this scheme surrounding the hearing on my motion, his signature appears on all of the relevant rulings and responses of the court.  Judge Whyte knew or should have known that the hearing on my motion on April 26, 2013 was a sham. It is also unclear if Clerk of Court Richard Wieking played a role in this matter. But, it is sufficiently clear that Courtroom Deputy Jackie Garcia, Case Systems Administrator Betty Walton, Court Reporter Lee-Anne Shortridge, Court Clerk Cita Escolano, Deputy Clerk of Court Sandy Morris and Deputy San Jose City Attorney Richard North were all part of this elaborate plan that obstructed justice. It is also likely that other court officials and San Jose city officials were involved.    

             As to my allegation of public corruption against officials of the Ninth Circuit Court of Appeals, I am alleging that Clerk of Court Molly Dwyer, Case Administrator Brad Ybarreto and Deputy Clerk Jerry Rosen willfully denied me due process of law by failing to take action on motions and letters I filed in 2010, 2011 and 2012. Those motions and letters sought to vacate the void judgment of the Ninth Circuit Court that affirms the District Court’s decision to grant the City of San Jose’s motion for summary judgment. Court policy requires that all motions be presented to a motions panel or the Appellate Commissioner for disposition on the merits. 

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            I am also alleging that Chief Judge Alex Kozinski provided me with false information in May 2010 that he had no authority to consider complaints against state officials. He stated that I must file any complaint against the San Jose City Attorney’s Office with state and local authorities. This claim by Judge Kozinski is not credible because Ninth Circuit Rule 46-2 states that the Chief Judge may initiate disciplinary proceedings based on misconduct by attorneys before the Court of Appeals. Courts also have the inherent power to initiate disciplinary proceedings based on misconduct by attorneys. Judge Kozinski, Clerk Dwyer, Deputy Clerk Rosen and Case Administrator Ybarreto are guilty of judicial misconduct.

            I am well aware that the F.B. I. does not normally get involved in matters relating to on-going litigation involving the courts because of the “separation of powers” doctrine; and because of the importance of an independent judiciary that’s necessary to the proper functioning of government. However, the misconduct by the courts and the City of San Jose has been brazen and persistent with a total lack of regard for the truth, the Constitution and the rule of law. It is sufficiently clear that the San Jose City Attorney’s Office has improperly influenced every decision by the courts related to this matter. At the very least, this suggests some type of quid pro quo and that justice is for sale in America. It is unmistakable that San Jose city officials and court officials have engaged in public corruption because of their collaborative effort to obstruct justice. A criminal investigation is mandatory based on F. B. I. policy that places a priority on color of law abuses and public corruption.  

            Several documents, including my Rule 60 motions, are enclosed to support my allegations. Additional evidence to support my claims can be found at the official PACER website under Frederick Bates v. City of San Jose; et al, district court case number 06-cv-05302 RMW and Ninth Circuit case number 13-16397. I am also requesting a meeting in order to provide additional information and evidence.

                                                                                               

                                                                       Respectfully submitted,

                                                                                              Frederick Bates                       

           

Enclosures (30)

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                                                                                            Frederick Bates

                                                                                                            -------------------

                                                                                                            Folsom, CA 95630

                                                                                                            (408) --------------

                                                                                                           

                                                                                                          

October 16, 2014

Santa Clara County Civil Grand Jury

Superior Court

191 North First Street

San Jose, CA 95113

Re: Public Corruption Complaint against San Jose City Officials and Federal Court Officials

Dear Members of the Civil Grand Jury,

                On May 24^th of this year (2014), I filed a complaint with the Criminal Grand Jury and the District Attorney’s Office seeking an investigation into criminal misconduct by San Jose city officials relative to a lawsuit I filed against the City in August 2006 for civil rights violations. Complaint letters I filed with the Federal Bureau of Investigation, the State Attorney General’s Office and the U.S. House of Representatives Judiciary Committee were included. It was my intent that the Criminal Grand Jury and the District Attorney’s Office use the complaint letters as the basis for an investigation.

            On June 11^th, I spoke to Deputy District Attorney John Chase relative to this matter. Mr. Chase stated that the District Attorney’s Office would not be opening an investigation into my complaint. In a follow-up letter sent to me dated June 12, 2014, he stated that the materials I submitted did not clearly list the crimes I believe were committed. This is simply not true. In my letter to the Criminal Grand Jury, I state the following: “My specific allegations are that San Jose city officials committed the criminal acts of conspiracy, perjury, witness tampering, obstruction of justice and possibly bribery.” The crimes that I believe were committed by San Jose city officials and court officials are also stated in the letter I filed with the F.B.I. (Copies of the letters are enclosed). Mr. Chase stated that the District Attorney’s Office is unable to open an investigation into the crimes I allege because the acts constituting these crimes seem to have occurred from 2005 to 2007; well beyond the four year statute of limitation for prosecution of these crimes. While Mr. Chase notes correctly that some of the criminal acts I allege did occur from 2005 to 2007, he failed to note that documents I submitted reveals that San Jose city officials engaged in a cover-up of the misconduct by the City Attorney’s Office beginning in 2010 and in 2012. Mr. Chase also failed to note that I made an allegation that the San Jose City Attorney’s Office engaged in criminal misconduct by conspiring with U.S. District Court officials to falsify court documents and to stage “pretense litigation” on a Rule 60 motion I filed in February 2013. These allegations of misconduct are well within any four year statute of limitations. The District Attorney’s Office lack of interest in opening an investigation into this matter can be attributed to an apparent conflict of interest.

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                Even though misconduct relative to my lawsuit against the City of San Jose is the basis of my complaint, I am not asking the Civil Grand Jury to review the decisions of the courts relative to this matter. A review of the decisions made by the courts is being made through my appeal that is pending in the Ninth Circuit Court of Appeals. What I am asking is that the Civil Grand Jury, pursuant to its civil watchdog responsibilities and its authority to receive citizens’ complaints, conduct an investigation into my charges that the San Jose City Attorney’s Office and three retired police administrators engaged in very serious misconduct relative to my lawsuit and that current and former San Jose city officials are engaged in a criminal cover-up of that misconduct.

            My lawsuit for civil rights violations against the City relates to the denial of my CCW permit by the police department after I retired on a medical disability in April 2004. The denial of my CCW permit was bigoted, retaliatory and violated City policy, state law and the U.S. Constitution. My federal lawsuit was filed in August 2006 after my attempt to resolve this matter in Small Claims Court failed. During my attempt to litigate this matter in Small Claims Court and federal court, the San Jose City Attorney’s Office and Police officials engaged in brazen and persistent misconduct as stated by the following:

·        Former Chief of Police Rob Davis, former Assistant Chief of Police Tuck Younis, City Attorney Richard Doyle and Deputy City Attorney Carl Mitchell refused to appear in Small Claims Court in response to their subpoenas in 2005 and 2006. This is contempt of court.

·        Former Deputy City Attorney Michael Dodson, former Chief of Police Rob Davis, former Assistant Chief of Police Tuck Younis and former Deputy Chief of Police Adonna Amoroso conspired to present false testimony in the depositions of Younis and Amoroso in June 2007 relative to my federal lawsuit. This constitutes the criminal acts of conspiracy and subornation of perjury.

·        Younis and Amoroso did, in fact, commit perjury in their depositions. Several of the perjured statements by Younis and Amoroso were used by City Attorney Richard Doyle, Assistant City Attorney Nora Frimann and Deputy City Attorney Michael Dodson in support of a summary judgment motion by the City that was filed in district court in October 2007. The clear intent of the summary judgment motion was to push a false narrative that police officials had denied my CCW permit only one time; and that they granted my permit immediately after receiving clarifying information regarding my work restriction. This is absolutely false. Police officials, as well as, officials from the City Attorney’s Office denied my CCW permit several more times after receiving information that was crystal clear that I was entitled to a CCW permit or a hearing. The City Attorney’s Office also presented false information to the courts that the issue regarding the denial of my CCW permit was resolved in Small Claims Court; therefore, my civil rights lawsuit was precluded on the basis of collateral estoppel. The City’s summary judgment motion was a complete hoax, a total fabrication. The offenses implicated are perjury and fraud on the court.

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·        Doyle, Frimann and Dodson conspired with my former attorney, Stuart Kirchick, to fraudulently dismiss Tuck Younis from my lawsuit by stipulation in August 2007 without my knowledge or consent; then misrepresented to the court that I had agreed to the dismissal. The dismissal provided me no benefit whatsoever. The purpose of the dismissal was to prevent the district court from ruling on the unconstitutional decision of Younis to deny me a CCW permit. I have evidence that strongly suggest that the dismissal of Younis resulted from a quid pro quo arrangement. This implicates the criminal acts of conspiracy, fraud, bribery and obstruction of justice. It should also be noted that Mr. Kirchick withheld other key evidence from the courts.

·        The San Jose City Attorney’s Office engaged in criminal misconduct by conspiring with U.S. District Court officials to falsify court documents and to stage a phony hearing on my Rule 60 motion filed in February 2013. My Rule 60 motion seeks relief from the judgment of the U.S. District Court granting the City’s summary judgment motion. This implicates the criminal acts of conspiracy, fraud and obstruction of justice.

            In addition to the criminal statutes violated, the misconduct by City officials as stated above is also a violation of the City’s Code of Ethics. The Code of Ethics states that City officials and employees are obligated to uphold the Constitution of the United States and the Constitution of the State of California and to comply with Federal, State, and local laws and City policies. The Code of Ethics prohibits discrimination in any form. (A copy of the Code of Ethics is enclosed) To support my claims of misconduct by the City Attorney’s Office and federal court officials, I have enclosed the Rule 60 motion I filed with the district court in February 2013 and a second Rule 60 motion filed in September 2013. A motion to vacate judgment I filed in the Ninth Circuit Court of Appeals in September of this year (2014) and several other documents are also enclosed.

            I am charging that the below listed City officials have engaged in a deliberate cover-up by failing to open an investigation into the misconduct of the San Jose City Attorney’s Office as

required by the City’s Code of Ethics and other City policies. The crimes implicated are conspiracy and obstruction of justice:

·        Mayor Chuck Reed and his former Agenda Services Manager (Sara Wright):Mayor Reed was advised of misconduct by the City Attorney’s Office in letters dated April 25, 2010, February 27, 2012 and an email dated October 26, 2010. Sara Wright was advised in a letter dated April 2, 2012. Both Mayor Reed and Ms. Wright failed to respond to my request for an investigation. (Copies of the letters and email are enclosed)

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·        Current and former Council Members Rose Herrera, Nancy Pyle, Nora Campos, Judy Chirco, Kansen Chu, Ash Kalra, Sam Licardo, Madison Nguyen, Pierluigi Oliverio and Pete Constant: All were advised of the misconduct by the City Attorney’s Office and police officials in letters dated August 4, 2010. None responded to my letters. (Copies of the letters are enclosed)

·        Former City Manager Debra Figone: Ms. Figone was advised of the misconduct by the City Attorney’s Office and police officials in a letter dated August 4, 2010. She did not respond to my letter. (A copy of the letter is enclosed)

·        Office of Employee Relations and its former director Alex Gurza and Deputy Director Gina Donnelly: I filed a formal complaint with Employee Relations by letter dated August 3, 2010. In a response letter dated November 5, 2010, Ms. Donnelly somehow implied that an investigation into my complaint was contingent upon action taken by the courts and the State Bar of California. This is misleading. The initiation of an investigation into misconduct by any City official is the sole responsibility of the City. (Copies of the letters are enclosed)

·        San Jose Ethics Commission - formerly San Jose Elections Commission (Members -Michael Smith, Rolanda Pierre-Dixon, Linda Edgeworth and Leon Louie): In May 2012, I filed a complaint with the Elections Commission by letter against the City Attorney’s Office for violating the City’s Code of Ethics. The Commission and its Evaluator, Hanson Bridgett LLP, acted outside the scope of their jurisdiction as stated by City Council Resolution No. 75640, paragraph F.4. The Resolution requires that the Evaluator refer any complaint where the Respondent is a classified or unclassified employee appointed by a City Council Appointee to the appointing authority for investigation and action. The Resolution states that the Commission shall take no further action on the complaint with regard to the employee. Attorneys for the City are unclassified employees appointed by the City Council. The Evaluator failed to make the required referral; and the Commission held a hearing on my complaint and closed it out knowing it was beyond the scope of the Commission’s jurisdiction and in clear violation of Resolution 75640, paragraph F.4. In March 2013, I spoke to Cecilia McDaniel in the City Clerk’s Office regarding the Commission’s failure to make a referral. She could not provide an explanation. (Copies of the relevant documents are enclosed)

·        Former City Clerk Dennis Hawkins and current City Clerk Toni Taber: Mr. Hawkins and Ms. Taber were well aware that the Elections Commission’s closing of my complaint against the City Attorney’s Office without a referral to the City Council violated City policy. Yet, they took no action.

From the facts and evidence as presented above, it is clear that City officials are covering up the misconduct by the City Attorney’s Office. Not only is this an obstruction of justice, but as stated above, it is also a violation of City policy. The City’s Code of Ethics states employees who violate the Code of Ethics will be

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 subject to disciplinary action, up to and including termination. It further states that the violation of the Code of Ethics by a City official, elected or appointed, constitutes official misconduct. As of today’s date, October 16, 2014; no investigation has been conducted. The most troubling aspect of this matter is that the following current and former City officials appeared to have profited financially as a result of their misconduct. They all received promotions or high paying positions outside the city:

·        Former Deputy City Attorney Michael Dodson left the City to become a Senior Litigation Attorney with a private law firm in the Bay Area.

·        Alex Gurza was promoted from Director of Employee Relations to Deputy City Manager.

·        Nora Frimann was promoted from Chief Trial Attorney to Assistant City Attorney.

·         Tuck Younis was promoted from Captain to Assistant Chief of Police. He then used the Assistant Chief’s position as a stepping stone to become Chief of Police of Los Altos.

·        Pete Oliver, a Deputy Chief of Police at the time of his involvement in this matter, is now the Chief of Investigations for the Santa Clara County District Attorney’s Office.

·        Cecilia McDaniel, who was a legal assistant to former Deputy City Attorney Michael Dodson, is now Deputy City Clerk.

            It is very likely that other employees received some benefit for engaging in misconduct related to this matter as well.

            City officials’ refusal to take action against the City Attorney’s Office is evidence of a double standard as it relates to the disciplinary process. For four plus years I have tried to initiate an investigation into misconduct by the City Attorney’s Office to no avail. During this same time period approximately one hundred or more rank and file employees have been terminated from City employment for alleged misconduct. Much of the misconduct alleged was for some form of dishonestly and for reasons far less reprehensible than the dishonest and criminal misconduct of the City Attorney’s Office and police administrators. It should also be noted that rank and file police officers were subjected to two comprehensible investigations in 2012 as a result of the pay job scandal. The City also solicited complaints against rank and file police officers in utility bills that were mailed in December 2012. Yet, City officials have rejected my many requests for an investigation into the criminal misconduct by the City Attorney’s Office.

From the many scandals that have plagued the City during the Reed administration, it is clear that there is a culture of corruption at the very top level of San Jose city government. The scandals are also proof that there is no accountability on the part of City leaders. This is shocking since it was Mayor Reed who promised no lying, no cheating, and no stealing when he was first elected mayor. It was he who passed several Reed reforms promising openness and honesty in government. He also promised that he would eliminate corruption from City Hall. Yet, the Mayor and City Council have allowed the City Attorney’s Office to be run like a criminal enterprise by allowing it to engage in brazen and persistent misconduct with impunity.

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            An article by Mercury News Reporter Scott Herhold published in 2006 also supports my complaint against the City Attorney’s Office. In that article, Mr. Herhold implied that City Attorney Richard Doyle routinely uses unethical tactics during litigation involving the City. The article states that Mr. Doyle has a history of pushing bad cases and refusing to settle weak ones, costing the City millions of dollars. My case is a prime example of Mr. Doyle pushing a bad case by using unlawful tactics. He was given several opportunities to resolve my case without any litigation when there was no cost to me or the City. Yet, he chose to reject those opportunities and engage in protracted litigation that has cost the City several thousands of dollars, and is likely to cost thousands more. It is apparent that the unethical tactics by Mr. Doyle are unwritten City policy endorsed by Mayor Reed and the City Council. It is indefensible that the City has not initiated an investigation into the serious charges I make against the City Attorney’s Office.

The action I would like the Civil Grand Jury to take is as follows:

·        As already requested, conduct an immediate investigation into my allegations of misconduct by the City Attorney’s Office and the cover-up by Mayor Reed, the City Council and other City officials.

·        Make a recommendation for a criminal probe into the actions by City officials by the appropriate authority such as the State Attorney General’s Office or the F.B.I.

·        Make a recommendation that the City, by its own policy, initiate an administrative investigation into this matter through a neutral third party.

·        Make recommendations for reforms in the City’s complaint process whereby complaints of misconduct against top City officials are investigated in the same aggressive manner as complaints against rank and file City employees and officials, particularly police officers and fire fighters.

·        Make a recommendation that the City and Police Department adopt a written policy regarding the issuance of concealed weapons permits to retiring police officers that provide basic due process protections that comply with state law.

I respectfully request to meet with the Civil Grand Jury in order provide additional evidence and insight into this matter.

                                                                                                    Respectfully submitted,

                                                                                     Frederick Bates

c: Deputy District Attorney John Chase – County of Santa Clara

    Special Agent in Charge David J. Johnson – F. B. I. (San Francisco Division)