From: elrond1@home.com (Gregg)
Subject: Scn filings re my rule 60 appeal
Date: Sat, 30 Jun 2001 07:10:53 GMT
Organization: Temple of At'L'An
Message-ID: <3b3d77a1.115970488@news2.lightlink.com>
Thought you folks might want to see this. In my opinion it is just
another example of how a large corporation with a stable of lawyers
can abuse an individual using the law. Keith Henson
****************************************
Rabinowitz, Boudin, Standard, Krinsky & Lieberman, P.C.
Attorneys at Law
740 Broadway, Fifth Floor
New York, NY 1003-9518
TELEPHONE (212) 254-1111
FACSIMILE (212) 674-4614
LEONARD B. BOUDIN (1912-1989)
MICHAEL KRINSky
ERIC M. LIEBERMAN
DAVID B. GOLDSTEIN
--------
CHRISTINE S. KIM
RAPHAEL GOLB
ROGER BEARDEN
COUNSEL
VICTOR RABINOWITZ
MICHAEL B. STANDARD
LEONARD I WEINGLASS
ELLEN J. WINNER
DEBRA EVENSON
TERRY GROSS
May 24,2001
VIA UNITED STATES MAIL
Ms. Cathy A. Catterson
Clerk of the Court
United States Court of Appeals for the Ninth Circuit
95 Seventh Street
San Francisco, CA 94103-1526
Re: Religious Technology Center v. H. Keith Henson
No. 00-16517_______________________
Dear Ms. Catterson:
I enclose for filing an original plus four copies of Appellee
Religious
Technology
Center's Notice of Defendant-Appellant H. Keith Henson's Fugitive
Status
and Motion to
Dismiss Appeal in the above-entitled case.
Very truly yours,
(signature)
David B. Goldstein
Counsel for Appellee/Cross-Appellant
Religious Technology Center
EML/mep
cc: H. Keith Henson(by mail to last known address)
G:\Henson\letter to clerk 9th circuit may24 2001-wpd
IN THE
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
No. 00-16517
RELIGIOUS TECHNOLOGY CENTER,
Plaintiff-Appellee,
H. KEITH HENSON,
Defendant-Appellant,
On Appeal from the United States District Court
for the Northern District of California
San Jose Division
The Honorable Ronald M. Whyte
NOTICE OF DEFENDANT-APPELLANT H. KEITH HENSON'S
FUGITIVE STATUS AND MOTION TO DISMISS APPEAL
I. On April 26, 2001, defendant-appellant H. Keith Henson was
criminally convicted for violating the California Hate Crime statute,
Cal. Penal Code § 422.6(a), resulting from his intimidating,
threatening and oppressing Scientologists on account of their
religious beliefs, following ajury trial in Riverside County (Ex, A).'
Following his conviction, the court
----------------------------------
footnote
1 Cal. Penal Code § 422.6(a) provides in pertinent part:
No person, whether or not acting under color of law, shall by force or
threat of force, willfully injure, intimidate, interfere with,
oppress, or threaten any other person in the free exercise or
enjoyment of any right or privilege secured to him
or her by the Constitution or laws of this state or by the
Constitution or laws of the United States because of the other
person's race, color, religion, ancestry, national origin, disability,
gender, or sexual orientation, or because he or she perceives that the
other person has one or more of those characteristics.
end footnote
----------------------------
released Henson on his own recognizance until his scheduled appearance
for sentencing on May 16,2001. Id.
2. On May 13, Henson posted the following message on the
Internet: "I will not be in Riverside May 16. In fact I would have to
be a complete idiot to be in Riverside May 16! BonSoire! Eh? Keith
Henson."
(Ex. B). On May 15, Henson posted another message under the heading
"Henson in Canada UPDATE," further demonstrating his intent to become
a fugitive from justice, and suggesting he would seek "refugee status"
in Canada (Ex. C).
3. When Henson failed to appear for his sentencing on May 16,
2001, the court revoked his personal recognizance status, filed an
additional criminal charge arising from Henson's failure to appear
(Cal. Penal Code § 1320(a)), and issued a bench warrant without bail
for Henson's arrest (Ex. D). At this time, Henson remains a fugitive,
with his whereabouts - presumably somewhere in Canada - unknown.
4. Henson's pending appeal - his seventh arising out of this
underlying litigation concerning Henson's willfbl infringement of
appellee Religious Technology Center's ("RTC") copyrights - is from
the district court's denial of his Rule 60(b) motion,
in which Henson seeks to reopen both the copyright judgment against
him, and the civil contempt imposed on him for
violation of a court order sealing certain trial testimony. Both of
those judgments were affirmed by this Court long ago.
page 2
5. Henson's appeal, like many of his prior filings, is
frivolous. It has been fully briefed and, as in the past, this Court
can readily dispose of it without oral argument, and affirm
the decision of the district court. Nevertheless, RTC believes it
appropriate to bring to the Court's attention Henson's fugitive
status, and requests that, as an alternative to affirmance ofl
district court, the Court exercise its discretion to dismiss Henson's
appeal pursuant to the "fugitive disentitlement doctrine."
6. Under the long-standing fugitive disentitlement doctrine, the
federal courts have inherent authority to exercise their discretion to
"disentitle" a party from the use of the federal
courts, including in civil cases, when the party has become a fugitive
from justice. Degen v. United States, 517 U.S. 820 (1996). The
doctrine serves several important policies, in recognition of "the
difficulty of enforcement against one not willing to
subject himself to the court's authority; the inequity of allowing a
fugitive to use court resources only if the outcome an aid to him; and
the need to avoid prejudice to the nonfugitive party." Magluta v.
Samples, 162 F.3d 662, 664 (11th Cir. 1998); see Pesin v. Rodriguez,
244 F.3d 1250, 1253 (11th Cir. 2001) ("Aside from the difficulty of
enforcing ajudgment against a fugitive, other rationales
underlying the doctrine include promoting the efficient operation of
the courts, discouraging flights from justice, and avoiding prejudice
to the other side caused by the appellant's fugitive status."); Empire
Blue Cross and Blue Shield v. Finkelstein, 111 F.3d 278,
280 (2d Cir. 1997).
7. In Degen v. United States, 517 U.S. 820, 824-28 (1996), the
Court emphasized that whether to apply the doctrine in civil cases
turned on practical considerations similar to those that inform
decisions to dismiss a suit with prejudice for misconduct, omissions
or mistak 517 U.S. at 825-87; Sarlundv. Anderson, 205 F.3d 973 (7th
Cir. 2000) (applying doctrine to page 3 has "applied the
disentitlement doctrine to civil cases." United States v. Van
Cauwenberghe, F.2d 1048, 1054 (9th Cir. 1991) (citing United States v.
$129,374 in United States Currency, ~ F.2d 583, 588 (9th Cir. 1985);
Conforte v. Commissioner, 692 F.2d 587, 589 (9th Cir. 1982))
Indeed, the doctrine is "even more applicable in civil cases than
criminal or quasi-criminal appeals because the appellant's liberty is
not at issue." Van Cauwenberghe, 934 F.2d at 1054 see Conforte, 692
F.2d at 589; Empire Blue Cross & Blue Shields. Finkelstein, 111 F.3d
278 280 (2d Cir. 1997).
8. The courts require a nexus between the civil action and the
criminal convictiol when applying the disentitlement doctrine. See
Ortega-Rodriguez v. United States, 507 U.S.
234, 242-48 (1993); Van Cauwenberghe, 934 F.2d at 1054; United States
v. Barnette, 129 F.: 1179, 1183 (11th Cir. 1997). All that is required
is "some connection" between the fugitive status and the pending
proceeding. Pharaon v. Bd. of Governors, 135 F.3d 148, 151 (D.C. Ci
1998). The requisite nexus is clearly present here, although the
criminal conviction occurred state court. See Sarlund, 205 F.2d at 974
(dismissing federal civil rights action connected to apparently state
criminal charges). Prior to his willful copyright violation that led
to the underlying lawsuit, Henson had been a complete stranger to RTC,
all other Scientology entity the Scientology religion, and
Scientologists generally. In tandem with his improper antics,
frivolous filings, and contempt of court in this litigation, his
out-of-court anti-Scientology activities escalated from derogatory
internet comments to the full-blown terroristic threats of
violence against Scientologists and Scientology entities, including
RTC, that resulted in his criminal conviction. Unquestionably, the
root cause and catalyst of Henson's anti-Scientolog
activities have always been related directly to this lawsuit,
including the civil contempt page 4
judgment.
9. The type of affirmative relief that Henson seeks from this
Court makes application of the disentitlement doctrine particularly
apt. Henson seeks to reopen both the copyright
judgment and the contempt judgment. Yet, such relief would either
seriously disadvantage RTC, or it would be an exercise in futility. It
would be well-nigh impossible for RTC to prosecute directly its
copyright action against the fugitive, with the most likely
outcome an unenforceable default judgment, given Henson'sjw-o se
status. Similarly, the district court's re-entry of a civil contempt
judgment on default would be unenforceable. Alternatively, Henson
seeks a hearing on the fantastic charges brought with his Rule 60(b)
motion. Again, granting the hearing would be a futile gesture, since
Henson is a. pro se fugitive. Furthermore, RTC would be forced to
continue to incur needless fees and expenses, and any additional
attorney's fee awards would be uncollectable.
10. fost-Degen cases continue to make clear that the
disentitlement doctrine should be applied in situations such as here,
in which the movant-appellant seeks to invoke the power of
the federal courts for his benefit, but would avoid any negative
consequences. In particularly apt language that could have been
written for this case, the Seventh Circuit has stated that a party's:
fugitive status places him entirely beyond judicial control, thus
creating a situation severely prejudicial to his adversaries. Since
his whereabouts are unknown, he cannot be deposed by defendants or
made to pay costs (should he lose) or attorneys' fees (should he lose
and his suit be adjudged sanctionably frivolous). There is nothing to
prevent him from using the litigation process to harass the defendants
with impunity, and no measure that we can think of short of
dismissal of his suit that will protect the defendants from
harassment. Sarlund, 205 F.3d at 975. Similarly, in Pesin, the 11th
Circuit stated, in dismissing an appeal of the fugitive
defendant-appellant in a civil child custody proceeding:
page 5 it would be inequitable to allow Osorio to use the resources of
the courts only if the outcome is a benefit to her. We cannot permit
[appellant] to reap the benefitsof a judicial system the orders of
which she has continued to flaunt. 244 F.3d at 1253; see also
Finkelstein, 111 F.3d at 282 (dismissing fugitive defendants' civil
appeal because ofenforceability concerns and prejudice to
plaintiff-appellees).
CONCLUSION
For the reasons stated herein, and in the prior proceedings, the Court
should affirm tt judgment below or, in the alternative, dismiss
Henson's appeal pursuant to the fugitive
disentitlement doctrine.
Dated: May 24,2001
Respectfully submitted,
(signature)
ERIC M. LIEBERMAN
DAVID B. GOLDSTEIN
Rabinowitz, Boudin, Standard,
Krinsky & Lieberman, P.C.
740 Broadway, 5th Floor
New York, New York 10003
(212)254-1111
Page 6
CERTIFICATE OF SERVICE
I, ERIC M. LIEBERMAN, hereby certify that on this 24th day of May
2001, I
caused a
copy of NOTICE OF DEFENDANT-APPELLANT H. KEITH HENSON'S
FUGITIVE STATUS AND MOTION TO DISMISS APPEAL to be served by causing a
true
copy thereof to be mailed by First Class Mail, postage prepaid, upon
the
following individual, at
his last known address:
H. Keith Henson
P.O. Box 60012
Palo Alto, CA 94396
[signature]
ERIC M. LIEBERMAN
page 7
[At top, apparently fax printing] From (Wed) 5.2901
11:25/ET.11:24/No.4260229478 p 3
OTSCASPRT Superior Court of California, Conty of Riverside
5/21/01 CASE PRINT
SUPERIOR COURT-C page 1
-------------------------
CASE NUMBER: HEM014371 DEFENDANT STATUS: Warrant
ARREST NBR : DR00201037 ARREST Date . . .: 7/19/00
ARREST AGY : RIV SHERIFF (COUNTY) HEM
Defendant .: HENSON, KEITH Defn: 1 of 1
Date Filed : 09/01/00
District Attorney: R. SCHWARZ Continuances: 24
Defense Attorney : PVT-J.HARR Age in Days: 248
Custody Status . . .: N/A - Bail: Last Trial . : 08/02/01
Charge Information
-------------------
Ct Type Charge Description
Plea Status Sev
001 ARREST 422 PC Criminal Threats
None F
001 FILED 422 PC TERRORIST THREATS DEATH/GBI None
Active M
002 FILED 664/M422 PC Att Terrorist Threats Death
None Active M
003 FILED 422.6 PC Intimidate/threaten/opress bec
NG Convict M
ause of
race/religion/color
004 WARRNT 1320 (A) PC Fail to appear on R.O.R.
None Active M
Warrant Information
-----------------------
Type Date Issued Status Bail Affidavit
Bench 05/16/01 Issued Amount $0.00 Date ------
Case Action Information
-----------------
Action Div Description
Status
--------------
4/26/01 Filed: VERDICT RE COUNT 3
--------------
H4 Jury Trial (Jury Deliberating)
Honorable ROBERT H. WALLERSTEIN Presiding.
Courtroom Assistant; L. Getz
People Represented By R.SCHWARZ, DDA.
Defendant Represented By PVT-J.HARR.
At 10; 16, the following proceedings were held:
Out of the Presence Of the Jury, the following
proceedings were held: JURY DEADLOCKED ON TWO
COUNTS
Court and Counsel Confer regarding: DEADLOCK
At 10:25, the following proceedings were held:
COURT IN SESSION; ALL PARTIES PRESENT.
Members of the Jury and Alternate (a) ARE present
Court Trial Commences.
At 10:27 jurors indicate THEY ARE DEADLOCKED AS
TO COUNTS #l AND #2
Court declares mistrial on COUNSEL'S motion as tc
count (s) l 2.
At 10:30 jury returns with a verdict.
We the Jury in the above entitled action, find
the Deft. H KEITH HENSON, GUILTY, in count 3 of .
violation of Section 422.6 PC.
Oral Motion by J HARR [not legible]
[appears to be fax printing] From (Wed) 5.2302
11:25/ST.11:24/No.4260229478 P4
OTSCASPRT SUPERIOR Court of California, County of Riverside
5/21/01 CASE PRINT Page: 2
SUPERIOR COURT-C
-------------------------------------
CASE NUMBER: HEM014371 DEFENDANT STATUS: Warrant
ARREST NBR : DR00201037 ARREST DATE . . . . : 7/19/00
ARREST AGY : RIV SHERIFF (CO-JNTY) HEM
Defendant : HENSON, KEITH Defn: 1 of 1
----------------
JURORS is called for hearing.
Motion Granted.
Jurors ARE Polled on the Verdict (s) and ALL
jurors answer in the affirmative.
Jurors are Thanked and Excused.
Defendant Ordered to Report To: PROBATION F/W FOR
FULL REPORT PRIOR TO SENTENCE. .
Report and Sentence Hearing set on 05/16/2001 at
11:00 in Dept. H4.
Defendant Ordered to Return.
Released on Conditional O.R. on the following
term (s) STAY AWAY FROM GOLDEN PRODUCTION
DEFT IS ORDERED TO STAY OFF OF ROAD THAT GOLDEN
PRODUCTIONS OCCUPIES FROM BETWEEN STATE AND
SANDERSON.
Oral Motion By J. HARR regarding DEFICIENCY IN
EVIDENCE RE COUNT #3 is called for hearing.
Motion Denied.
Motion By J. HARR Regarding MOTION FOR NEW TRIAL
is called for hearing.
DA SUBMITS BUT DOES NOT WAIVE RIGHTS
THE COURT DOES NOT FIND SUFFICIENT GROUNDS.
Motion Denied.
At 10:52, proceedings adjourned.
**MINUTE ORDER OF COURT PROCEEDING**
**** END OF CASE PRINT ***
[apparently fax printing] From (Wed) 5.2301
11:26/ST.11:24/NO.4260229478 P 7
From: Gregg (eirond1@home.corn)
Subject: Re: Through government channels [from Keith Henson]
View complete thread (4 articles)
Date: 2001-05-13 17:55:46 PST
On 13 May 2001 17:46:12 -0500, lmt_watch@my-deja.com wrote:
>0n Sun, 13 May 2001 20:03:57 GMT, elrondl@home.com (Gregg) wrote
>
>>
>>0h, dont worry about this, eveuybody including the state is named in
>>the suit.>>
>>Keith Henson
>
>Don't forget io be back in Riverside on May 16th.
>That'sjust three days from now.
I will not be in Riverside May 16. In fact I would have to be a
comolete idiot to be in Riverside May 16!
Bon Soire! Eh?
Keith Henson
[Apparent line of fax printing at top] From - (Wed) 5.2901
11:27/ST.11:24/NO.4260229478 P.8
Subject: Re: News Flash: Henson in Canada UPDATE!!!!!!!!
From: elrondl@home.com (Gregg)
Date: Tue, 15 May 2001 13:28:09 GMT
Message-lD:<3b022e0a.33017715@news2.1ightlink.com>
-----------
On Tue, 15 May 2001 06:22:50 GMT, philscott88@hotmail.com (Pil Scott)
wrote:
>0n Tue, 15 May 200108:04:14 +0200. Tilman Hausherr
><tilman@berlin.snafu.de> wrote:
>
>>0n Tue, 15 May 2001 04:41:12 GMT, elrondl@home.com (Gregg) wrote in
>><3b00b2b6.1440992@news2.1ightlink.com>
>>> Keith can file his appeal from Canada, even if he is wanted
>>>for Felony flight or whatever its called.
>>Heh heh, L. Ron Hubbard was sentenced in absentia but never appealed!
>>
>>What I also wonder - will Keith Henson lose his house?
>
>T think its Arel Lucas's house.
We own it jointly. But the idea of scientology was to get me in jail
where with no income they could force my Chapter 13 bankruptcy into
Chapter 7 and force liquidation/sale of the house for my interest in
it. If. and note if, I apply for refugee status, I can work here and
with an income remain in Chapter 13.
Keith Henson
[Fax printing at top] FROM (WED) 5.2301 11:26/ST.11:24/NO. 4260229478
P 5
OTSCASPRT Superior Court of California, County of Riverside
5/21/01 CASE PRINT Page: 1
SUPERIOR COURT-C page 1
-------------------------
CASE NUMBER: HEM014371 DEFENDANT STATUS: Warrant
ARREST NBR : DR00201037 ARREST Date . . .: 7/19/00
ARREST AGY : RIV SHERIFF (COUNTY) HEM
Defendant .: HENSON, KEITH Defn: 1 of 1
------------------------------------
Date Filed : 09/01/00
District Attorney: R. SCHWARZ Continuances: 24
Defense Attorney : PVT-J.HARR Age in Days: 248
Custody Status . . .: N/A - Bail: Last Trial . : 08/02/01
Charge Information
-------------------
Ct Type Charge Description
Plea Status Sev
001 ARREST 422 PC Criminal Threats
None F
001 FILED 422 PC TERRORIST THREATS DEATH/GBI None
Active M
002 FILED 664/M422 PC Att Terrorist Threats Death
None Active M
003 FILED 422.6 PC Intimidate/threaten/opress bec
NG Convict M
ause of
race/religion/color
004 WARRNT 1320 (A) PC Fail to appear on R.O.R.
None Active M
Warrant Information
-----------------------
Type Date Issued Status Bail Affidavit
Bench 05/16/01 Issued Amount $0.00 Date 00/00/00
Case Action Information
-----------------
Action Div Description
Status
--------------
5/16/01 Additional Charge Complaint Filed (Court Order)
--------------
H4 Report and Sentencing
Dispo
Honorable ROBERT H. WALLERSTEIN Presiding.
Courtroom Assistant: L. Getz
Court Reporter: M. Fuller.
People Represented By R.SCHWARZ, DDA.
Defendant Represented By PVT-J.HARR.
Defendant is Not Present.
PROBATION OFFICER GARY DAVIS present in Court.
At 11:10, the following proceedings were held:
ATTORNEY HARR INDICATES HE IS UNAWARE OF DEFT'S
WHEREABOUTS
PEOPLE INDICATE THEY ARE IN AGREEMENT WITH PROB
REPORT.
PEOPLE INDICATES VICTIMS DESIRE TO SPEAK.
VICTIM ELLIOT ABLESON ADDRESSES THE COURT.
ATTORNEY HARR INDICATES HE DOES NOT HAVE A COPY
OF THE PROBATION REPORT
AT 1130 THE COURT TAKES A RECESS SO J HARR
READ THE REPORT
11:50 COURT IN SESSION ALL PARTIES AGAIN PRESENT.
GARY DAVIS INDICATES HE RECEIVED A VOICEMAIL FROM
THE DEFT WHO INDICATED HE WAS GOING TO CANADA AS
HE DID NOT BELIEVE THE MATTER WAS PROCEEDING TODAY
[Fax printing at top] FROM (WED) 5.2301 11:26/ST.11:24/NO. 4260229478
P 6
OTSCASPRT Superior Court of California, County of Riverside
5/21/01 CASE PRINT Page: 1
SUPERIOR COURT-C page 1
-------------------------
CASE NUMBER: HEM014371 DEFENDANT STATUS: Warrant
ARREST NBR : DR00201037 ARREST Date . . .: 7/19/00
ARREST AGY : RIV SHERIFF (COUNTY) HEM
Defendant .: HENSON, KEITH Defn: 1 of 1
------------------------------------
COURT INDICATES SENTENCE SHALL BE SUSPENDED UNTIL
DEFT IS PRESENT.
Additional Complaint Ordered filed. Violation of
1320 (A) PC added as Count 4.
1320A PC Complaint Generated.
O.R. Revoked
Defendant fails to appear/fails to comply: Bench
warrant issued; NO BAIL
**MINUTE ORDER OF COURT PROCEEDING**
--------------------------
H4 Hearing on Motion Re: FOR RECONSIDERATION OF JNOV Dispo
Honorable ROBERT H. WALLERSTEIN Presiding.
Courtroom Assistant: L. Getz
Court Reporter: M. Fuller.
People Represented By R.SCHWARZ, DDA.
Defendant Represented By PVT-J.HARR.
Defendant is Not Present.
ATTORNEY HARR INDICATES HE IS UNAWARE OF DEFT
WHEREABOUTS.
Motion By DEFT Regarding SUBSTITUTION OF ATTORNEY
is called for hearing.
Motion Denied.
Motion By DEFT Regarding RECONSIDERATION is
called for hearing.
Motion Denied.
COURT DEEMS MOTION INAPPROPRIATE AS FILED - PRO SE
No custody status: WARRANT PENDING
**MINUTE ORDER OF COURT PROCEEDING**
**** END OF CASE PRINT ****
